state my appreciation for you willing to make a concession i don't know whether it was right or wrong but i'm are your willingness to step up and mike one thank you they asked me to give them some direction on what to do about their father dying in the jail the problem with people dying in the jail is that people trying to find out what went on are on the outside and only the people in the jail house are on the inside so let our mediately had noticed the county that we want to preserve all the evidence that they had including videotapes which they had the in house security mr hanssen spent seventy six days in jail he came to jail he had just been released from the hospital for pneumonia hypertension my colleagues may disagree but i don't think we need go rowley's facts i think we're pretty familiar with them including judge southwick he's written two opinions on this case so i really and i'm just a voice of one but just a jersey on of your facts into your legal issues they judge south people without direction from a doctor or a registered nurses is not only unconstitutional but is against the texas north practice side they can't do that they are limited in their training is limited and  stake which you call county are you arguing that that is the conditions of confinement a claim you have against wichita county and an episodic act or what do you organize to wichita county and then when you jump into that tell us why you are right i believe this was not a episodic act but one of the more this was a situation where you involved twelve detention officers and four different nurses and they were all trying to do something for his man but they were limited but because of the system they have in place it's a multi tiered system that was established and is a practice in how would you line up i mean we've already found of that mr henson did despite the terrible outcome did not have his constitutional rights violated  minutes all of the time and she would that is thing and then like fifteen minute phone call the next day that was it now i agree with the your decision that she tried to buy some care so she was not deliberately indifferent she was practice she was malpractise grossly negligent but so were the other nurses that were involved in mr hanssen care as well as the tapes you know he knew that he was sick but arguing as to the county you say practice and custom but that falls mourner conditions of confinement than episodic acts so you're saying against the county you're urging conditions of confinement practice and custom i just want to know we're going to find that in the record that you raised a conditions of confinement issue as to the county one sixteen days to document yes r so so is it is it your position is there is not it wasn't an explicit policy saying nurses commit malpractise but it was a de facto prevail with is that condition right well and if if that's the case then do we have to look for the pervasive quality to whether you alleged that this occurred in circumstances other than his yes it occur in the brown or in this case  k when you say yes we would have to make that pervasiveness finding their argument is that the only other case that evidence was introduced arguably showing nurses being unsupervised as brown that the rest of them were not no legitimate reason for them to do that from two nurses who talked about the condition were it was the intimidation by the jail physician who wanted these nurses to make their decisions without his you know intervention he didn't he didn't want to call the late night he did hesitant to call dr beller but that they continued to do when they continued to treat me what you know i'm not sure that's evidence of the condition of confinement that would be attributable to the county there was the department of justice report saying gross inattention to inmate needs amounting to punishment or it was here in the exchange you're saying each of these nurses exemption officers tried they just weren't they w either supervised or licensed to recognize respiratory distress that isn't is that isn't as acute equating to punishment well actually it was it was hypertensive  actually had a plan a policymaker above him the city manager but the courtlandt case found that because the police chief has different duties and things that he was the final say with regards to police procedure and here we're talking about medical procedures not police procedures so if even if dr bowen is the policy maker and the evidence had both share callahan and dr bow no constitutional violation by the nurse or any one else who has been so determined in this case dr bell was contracted to hold three sick calls a week in jail and he testified in his deposition that he knows that there could be anywhere from seven to thirty people that needed his care and certainly that would include mr hanssen it because he was put on a doctor's call otherwise that's that's what i perceived these to blow this morning his argument if i'm wrong i can address both but i believe that he's essentially without having an independent actor intervening and i don't think he is in this case and i think the only thing they can the conditions of confinement case but i will point out to the court that for practical considerations both of those cases are considered to be essentially analyze the same way under a deliberate indifferen negligent medical care they have to show a in they have to show x indicative of a system wide problem that has been extended  not good enough to want to point to one previous episode of they've got to point to something that is so pervasive that it creates an actual condition of confinement and if we look at the cases where this circuit is such a condition shepherd rotters it was an either worst situation even worse situation the testimony was when the u s government came in to investigate the testimony from all the medical staff was that at least fifty percent of about oh excuse me but what about a policy that would be pervasive such as having nurses in the jail that aren't qualified and i'm just for the sake of the question that are qualified to be engaged in the type of practices they're performing i'm glad you brought that up honor because your honor because there's a long lot of cases in this circuit history that have essentially held that internal policies state policies state rules don't apply when analyzing a case in a constitutional con tonton the only thing that applause is what the constitution says the care should be if they care for a pretrial detainees that they have to receive reasonable medical care then so be it that's the standard but it doesn't take any state statutes or state standards in place of those standards over the federal state it doesn't change the deliberate indifferen jails all over the nation that have no ill feelings and no one trying to provide medical care and they're not required to but they have to treat in that it's in a reasonable manner and not be deliberately indifferent to their serious mere we're going to find that  but the question i'm asking the questions evidence in the summary judgment record to support what you've just said your honor i don't think there is any evidence in the summary judgment record other than the fact that they were ill the ins on duty in terms of  specific specific facts i don't think there's anything along those lines but it was undisputed that dr bowen said the sheriffs are responsible for supervising him and then sarah callahan said no he's responsible i think it's dual supervision and i think you find that in a lot of jail contacts this year those responsible for the supervision of the nurses disciplinary matters on showing up for work and keeping track of time dr bones responsible for how they conduct their medical activities ok also you he laid out a reasonable vision was a possibility but neither sheriff or doctor seem to know that from their testimony and that's not to be shepherd is not a perfect fit shepherd had a partner justice all over the dallas county jail oh i had other inquiries but some of the problems and shepherd  analogous to to what is gong on here you highlighted the fifty percent or more the prescriptions really were undelivered but there's a lot more there such as the jail has no capacity to diagnose illnesses that intake no policy or procedure for how in a major come to the jail how they receive the medication of dysfunction in the medical care is one label that was put in what concerns me about this case and has from the my from my introduction to this case years ago is that didn't seem to be anybody in charge of medical care at wichita county jail and that at least makes it somewhat analogous to sheppard i want i don't know about deval but at least sheppard so we look at the conditions of confinement and assuming intent that is the equivalent to deliberate indifference oh where was their choice somebody working to provide why really that we're talking about there's got to be in and constitutional violation relating to this in that and i believe the court has found that there has not been a constitutional violation specifically relating to this in that and that's because we found no deliberate indifference as to north crush which is not an issue in the conditions of confinement case that is imputed and i'm not quite sure how that works out but that is what the law says and what we held in benteke so we i don't think the fact that nurse crosscut was found not to be deliberate indifference is even particularly relevant we're i think you have to look at the first you have to look at whether or not there's a pervasive issue here you're looking at two cases nothing more and two cases that are extremely diverse from each other and they're out mr brown had various is it his throat that calls from the use of methamphetamine he had a bleed and he bled out this gentleman came into the jail with two prescriptions from the outside world which he was given and albuterol inhaler and he was prescribed with breathing treatments and he was given those medications so he came in from the outside world had never filled those prescriptions but started receiving them wall in the jail he was taken out of the smoke filled multipurpose room the smoke filled floor of the jail and placed in isolation so th secondary smoke wouldn't harm him and then he was watched every fifteen minutes the judgment by the magistrate judge which is also found in his opinion provides that wichita county and dr daniel bowen are entitled to qualified immunity well qualified immunity applies only to individuals we need to re man this to the magistrate judge to reconsider his ruling since apparently thought he was ruling on qualified immunity for the county i don't think so your honor i think it's a misstatement by the magistrate judge if you're sure that judge dick knows the difference between sort of immunity and qualified immunity and i don't think that there's any reason he says qualified immunity yes or not and i think that if anything that it was a misstatement or something along those lines well he said it in order to overcome the qualified immunity defense and episodic act cases plaintiffs must prove the nurse never talks about conditions of confinement your honor i really don't believe conditions of confinement was raised in the court we proceeded throughout this case as an episodic gag case conditions of confinement is something that came up after the pleadings and after the briefings and after the hearing to blow our account thank you years before this incident and then it was renewed or revised with a new contract in one thousand nine hundred eighty eight and the reason i bring that up is because this system that they're complaining about has been in place for a  decade and then went on apparently in place for some years afterwards to get the subsequent complaints that we have seven complaints in ten or fifteen years only one of which occurred before the incident with mr henson and that's why there is nothing in the history of the jail that suggests there's been a problem that needs fixing so what put dr bolen on notice that the nurses were acting outside their scope everything seemed to work fine until then no and two thousand and one according to their testimony that they were intimidated they both said we wanted to do something he said no and he was grown he said no and we went ahead and did it anyway the inmates got the care that they needed his argument here has been less this notion of intimidation and more of the notion that they simply had no license to administer medical care to someone in an acute or chronic condition and that's just wrong because the nurse practice act doesn't make them complete total wilting flowers they have a list of standing orders to person to pick treatments from but it doesn't mean that they can't follow their standing or it's not them that's entering the standing or doctor bolin that in or the standing order if you have coffee with congestion and you have this if you have this with that if something else but it's all for simple stuff not somebody who can't breathe the gel medical plane says if you can't breathe sit in the hospital but more importantly even the plane that's experts if you go back and look at the expert reports these nurses are so idiotic almost that everybody should realize that there are the nursing opinion is almost everybody coming out of any nursing school should know better to deal with them this patient than like they did have of this problem without there being a problem in the past and that's ultimately the problem which gets back to whether it's a conditions of confinement or episodic act case and it's got to be an episodic act case because there's the intervening actor who's if to what extent that has is the way it was presented in the district court but what about that or even can i it's one thing to say that the that there has to be a constitutional violation and so far there's not been one found but due to  the way that was phrased in the trial court was under his contract he's supposed to have three visits at the jail either to at the jail in one of the annex or vice versa i don't remember the exact order of which it went down and that because this this day's visit fell on thanksgiving he was planning to make it up later and did it and so they say he breached his contract i don't understand how that rises to the level of constitutional problem even if if the contracts in place to prevent constitutional problems mere violation of the contract doesn't necessarily rise to a constitutional level that's this court's recent opinion and doe versus roberts in which we starting our brief were the ice people contracted with some people and they didn't have a female supervisor female attendant supervising him and some male attendant of a prison transfer sexually assaulted some lady well again the breach of contract doesn't necessarily form the basis of a constitutional violation second and in texas state law at least whether that would amount to be a medical malpractise claim is seriously in dispute because in texas if you violate your own internal policy that doesn't prove you were negligent in of itself because you could set the bar way above the negligence line so that falling below your own bar doesn't mean you're negligent and we cite a couple cases at that the vs fulghum from the supreme court of texas on that plus this court's opinion in quo hano the kind of make that point which gets back to the point of merely delaying one of these days these visits doesn't show that you even committed not practice let alone rise to the level of serious neglect to be a constitutional violation and then with regard to judge s specific question of isn't that deliberate indifference it's not because he doesn't know what is on the list of people to be seen that day whether it's somebody that's in a life or death emergency or whether it's somebody who just has a repeat cold which the standing orders say if it doesn't work in a put them on the call is all see them at the call ist and so with regard to whether he's going to be dealing with somebody that's got a serious medical need that's going to be problematic that doctor bowen doesn't know because nobody even ever told him that mr  was in the jail and needed medical care and so when you add those kind of three things together the breach of contract that there they allege in the truck or does it rise to that level of deliberate indifference and certainly in my mind wasn't argued as a level of deliberate indifference because he missed one day of a jail visit on one week when it was a holiday planning to make it up later on and then nobody ever told him that there was a problem with this patient if they pick up the phone if the individuals pick up the phone and say jason are mr hinson is having a particular problem he can tell them to go to the hospital he could tell them he could prescribe different medication he could do a whole variety of things if he's aware of the problem and he can't be deliberately indifferent when he's not aware of the problem you made some reference a phrase that as artfully as if i want to and i don't think they go to that phrase but the nursing opinion is basically any nurses graduated from nursing school should know how to deal with this man was c o p d which is how i don't understand why the l v n issue is it play you're saying their expert jackley moore said that l d n should have been able to handle this any nurse should be able to handle that that's your argument that this can only be an episodic that that that's one reason why in this particular setting because it's it's obvious she certainly says these nurses should be handling these things at the jail but she goes on to say any nurse graduating from nursing school should know which proves our point that that the even these nurses should  if you go back and read the statute the statute does not say the nurses can only eat the l v a nurse can only take and the regulation two can only take data and go talk to the doctor that's a doctor that's not all what it says because under the section above the one they cite to the nurse all nurses have an obligation to assess the patient and evaluate whether they're competent to handle that care and then if you go specifically to l v n nurses that's true also they've got to make a nursing assessment which they did rightly or wrongly they still made a nursing assessment and they assessed what it was that within their capability the fact that it didn't turn out well because they may write a wrong decision doesn't mean that dr bowen was somehow negligent because they still have to accept the delegation from him under the standing order or whatever to decide that that's within their scope of practice it doesn't mean that they're they're not or they're not capable of even if they screw up there any evidence of dr bones age in the record doctor bones age i do not know that and i don't think it's in the record he i do know that he's not it's not it's not new york wouldn't on the record how long he's been practicing medicine there is not i do not believe it it might be in the contract but i didn't read any of the where fore parts of the contract but i don't think it is and there but my impression is that dr bowman is not retired on the one hand and he's also not a brand new doctor so i you know i kind of get the impression that he's in his forty's or fifty's when this was roughly fifteen years after ninety five so so but i'm not positive about that so two thousand and ten or so would be my guess but i'm i again not positive about that and i thank the evidence in a record and we both talk when i don't understand what we're saying and so you're telling us that we will look in this summary judgment record and for every item on your laundry list you've got evidence to support it yes  supposed to try transfer him over they didn't he said seventeen and a half hours a week seven seven hours a week seven half hours a week according to our rooms testimony there's a contract require a specific number of at the hospital and that you don't get paid additional for that but if he can't believe that he if he misses a sick call day he has to pay out of his own pocket someone to sit in for the doctors call because they have the continuing number anywhere from five to thirty in my case that need his assistance according to his deposition but you're you're not saying there's a fourteenth amendment violation for you to get medical care in less there is a doctor on the premises but that's not your position nor is it that that some specific number of hours are required you could have a jail that only had nurses well so what's the rule when you hit pervasive condition of confinement if it's the question of physicians supervision well his contract calls for him to be there three times a week and he's there three times a week right step when he decides he doesn't want to go and then exposed to hire someone to come in and sit in his place and that could be negligence or gross negligence but i guess i'm asking you if we look beyond this case what's the rule you're saying we are it you survive summary judgment in less a jail has a physician what they have to have a  physician to be in charge and one thing it's as a peer in this case is he's not in charge he doesn't want to be he's got willful ignorance in this case to alaric's after hansen that he holds a doctor's call less than ten feet from worried that it is and he claims that he didn't know anything about it there is a communication problem of complaint deliberate indifference if that sheriff d come to him and say we have this guy that here two hours ago what happened and of the doctor can't tell you what the doctor says i didn't he says he didn't know about the brown case until he got served the piper's i do i have a problem with and the the other report that the county commission came in in two thousand and five what about the part about the magistrate judge holding the county is entitle a qualified immunity in its judgment and it's i mean it's sort of alludes to the test being qualified immunity or not the title qualified well not the county is not entitled qualified immunity is i'm saying to you do we need to remain in this for a new hearing on the liability of the county of the magistrate judge was thinking he was testing qualified