presently here on what i could say is ultimately to issues the st one being that we respectfully believe that the court made a mistake in granting qualified immunity to the t defendants and in making a determination that the two defendants were not deliberately indifferent to a serious medical need of our of our client j d day as the court is probably aware i think this case falls in a very specialized circumstance in the sense that the majority of these cases are alternately dealing with prisoners and with whether or not their rights were devised were violated concerning you know medical need we have a case here that i think desire that requires kind of special attention a special analysis in the sense that what we have here is a minor infant that was born at a hospital to a mother who we know what the facts are the court made conclusions concerning the facts that the child was born cocaine positive the mother was cocaine positive the mother had no prenatal care the mother had of had four of her last seven children removed from her as a result of drug abuse we know that the mother had eleven point been also addicted to heroin and had a conviction for prostitution those are all the things that are known in the file but the court lower court ultimately ruled is that we produced no evidence which indicated that subjectively either one of these two caseworkers that's weaver and riley weaver being the hands on caseworker riley being her supervisor that we produced no evidence that subjectively they made the inference that you take those facts the child ultimately needed to be tested for hiv which it was not we believe that the court errored in a few respects in that regard when it comes to deliberate indifference number one the court injected in affirmative defense on behalf of the defendants which the defendants never raise themselves that would be the affirmative defense of  r your negligence and a reasonable mistake as to what weaver believed she had the authority to do what we show is that there is significant evidence that was in the file that a reasonable jury could of those factors that we know that we have or know we have the specific federal statute for testing we have florida statute thirty nine dollars which specifically requires testing for communicable diseases and that at the time we have the administrative code which was in effect at the time in two thousand which specifically required that the child be tested for communicable diseases and hiv when the child when a child is brought into shelter i thought you were using that theory to show clearly of the cases and i think maybe the lower court kind of kind of looked over it what we're talking about is the st six weeks of this child's medical care we know that it was a child was taken in the d c s custody we have a court order the court order was april th two thousand it was within one week from the date that the child was born pursuant to a court order d c f became the local parentless of that child and is responsible for that child's medical care that's right in the order and so we know that we have that we know that they have had training concerning hiv we know that although there is significant medical documentation in the file in the d c a file and the defense raises that issue a lot that medical documentation does not begin until months later so what we have is that in the record in the st six weeks there is no medical information whatsoever that  child received the early screening that was required any type of medical care that was required we know that there is no documentation whatsoever that any testing was done at the hospital but don't doesn't that end up cutting again not to do that and if it's that obvious then when we think that one of these many medical professionals who dealt with a child would have made that same conclusion well i think to a certain extent from what's in the record it's kind of almost a little bit of a red herring because we don't know what happened we have no medical records we have nothing in the file we don't know anything about hospital staff said or didn't say or didn't recommend what we do know and we know there wasn't any test we know there was an uneasy test well the court concluded that you can make i guess the assumption that there was an h i v test but i think what the real issue here is in the position that the d c f was in in protecting an infant child that you know unlike a medical unlike prisoners was medical issues my stomach hurts i have a pain i have this there's nothing that that child ultimately can so a question then becomes words there were sponsibility when presented with these facts to ensure that that was done the issue i don't think is the risk that he had hiv the issue is the risk that he was exposed potentially to age and that all of these risk factors were present that  she was made that you know this child should have been tested and there was nothing done the follow up or prove alternately that that was done in a this sounds like you are making an argument that is fundamentally  when that is correct you are but that is the prognosis of h i v you are not going up and dr tureen testified to that who was our expert and then there was dr rodriguez who is the doctor who actually took care of a j d when he was finally diagnosed at the age of forty you're not going to get those symptoms you're not going to have the baby because it's very asymptomatic you're not going to have a baby in the beginning that's going to express those are going to be able to say those or ultimately that they're going to shell so wh it comes down to is you have you have an individual who is specifically placed in the position of ensuring that a baby that cannot speak for themselves that cannot come forward and say what's hurting them to piece those factors together and to alternately when the symptoms are there in a medical professional things that something else and you know this is a case where what you're looking at is you have circumstances of a birth that are known to these people that that could potentially expose the child to each i v transmission so we're not looking to diagnose we're not looking to treat it as illness we're looking to say there is that risk did they follow up to ensure that anything was done but there's still a difference between this case let's say it actually said in the records the child may have been exposed to hiv and the defendants did nothing that's a different case from saying they have to draw the inference that the child was exposed to hiv and then have the testing done you see the distinction i certainly do your own of the st one would obviously be direct evidence and if that was in the file i don't think we would be here today the issue that we have here is is there significant you know just like former in the other cases that are up on  make a diagnosis that maybe there's something wrong they concluded probably just wrong so what taylor went on to say is you don't have to have to have in your mind what the exact element is the fact that you knew you were presented with that you did nothing rises the question that ultimately a jury should decide let me ask you a question about your i want to ask you a question about your claim about the right to screening are you arguing that there was a right to a screening generally and that wasn't done and that that would have led to hiv testing or there was a right to hiv testing at the big from the outset it's two for john i kind of argue both of them i think under the federal early detection statute forty two they had a right to be tested he was supposed to be tested as an error factor in the work far all are i'm sorry in the d c a file there was one piece of paper that was the child was supposed to go to to kruger medical which was dr gonzales for that particular testing and there was the testing well it was for the early detection and screening so what happened was it apparently he never because nothing's filled in on that form there was a later document which that said maybe hinted to it but the court threw that out that's not the was and that's not part of the evidence ultimately in this case so what the real issue is is it falls down to the nd position under whether or not they were deliberately indifferent which are the cases that deal with when when holy nothing's done when there is no documentation in the file which we have here in that window of six weeks later when the child is put in foster care you know there was no up there's things that are done but not within that ultimate critical period and the question is by having done nothing does that make them deliberately indifferent based upon the facts which they were presented with which the court said that they  what's the number one communicable disease especially back in two thousand it it was h i v but then the administrative code which was in a fact specifically mentions hiv and what we're looking at in that regard when it comes to you know the issue of the qualified immunity it was a clearly defined you really when you put are all together the totality of the circumstances otherwise what were these people doing what was their job supposed to be when they take a little infant that medically you're not going to know what has age you don't it's not of if nothing was done right and very particular test wasn't done you're right i respectfully disagree being placed in local protests having a court order that they're supposed to be doing the medical treatment and what's interesting is if you look at the deposition of mr mr clifford who was the foster parent initially when a foster parent it takes on a child they had zero right to any medical records if the child gets sick they just bring it to the doctor they can see the bill they can see the medical records they got to call the d c s worker it's that the c f worker who's in room is responsible for all those medical records and to determine alternately what needs to be done being in that position to monitor the child and once again not as a parent as somebody who's trained specifically to come in and handle these children in our state that have been that have alternately been abandoned so i think it's the lack of evidence in the case the lack that anything was done especially within that st six week period that raises a question of you know were they deliberately indifferent any deliberate indifference on the part of only reilly and willing weaver the district court separately found as to each one of them looked at what they knew at the relevant time period what inferences they may have been able to draw from that evidence what a reasonable person in their position may have been able to draw whether they actually drew the inference on the dish or court properly ruled that not only would they have had to draw the inference that the child may have been at risk for hiv but that the mother also would have had hiv otherwise there is no transmission do you agree that if if these workers have been told that the mother had hiv do you think and that case not testing the child would have constituted deliberate indifference if they were told by a medical professional if they were told by a medical professional that the child needed to be tested for hiv and they didn't i believe one of the case yes there probably are you know probably would amount to that if they were specifically told that information because that shows a direct knowledge not even a subjective awareness which is the standard but that would show then a direct knowledge of a substantial risk of all i do you think would be and i understand that you don't think there is enough here but what would be enough asides direct knowledge in order to support that subjective understanding that the child needed to be tested in a situation like this that's a difficult question to answer to the novel situation unlike the mcgillicuddy case or the devil case you know where there's actual where news were enough evidence to show that there should have been awareness that's difficult for me to tell and like mr stan zeoli alluded to you know this was something that was determined fourteen years later so the files in the records were you know sparser inadequate at best in a lot ways what we do know that they knew was that the child was in the hospital for the st seven days the child was under oxygen in either the e q or the intensive i think it was an e q actually on oxygen and monitor by medical professionals for seven days they didn't order a test they didn't draw the inference he's taken a doctor gonzales for a three year period dr gonzales was testified that he was aware of some of these facts and never drew that inference the sheriff's office who got the initial abuse report from bayfront medical on august and on april th two thousand didn't draw that inference now there's a six week period that mr stan zealot talks about and so if that's the critical period according to  when this could have been resolved then the information that they are charged with would have been known during that six week period the only information they would have known during that six week period based on the record evidence is that the mother had no prenatal care that the mother had four of seven previous children taken for cocaine or drug you know this one at birth and also that the child was born with cocaine in the system the prostitution was not a conviction it was an arrest we have objected to that evidence  that didn't come until later that came after the six week period the part about the heroin addiction or heroin treatment it wasn't actually addiction came after that six week period those are the only factors that they would have known during the six week period the predisposition study was done on may st two thousand and it was signed and executed that day that's after the six week period so even the information on that they want to know but if you look at the predispositions study which was done by jewish order of the pinellas county sheriff's office is specifically says to the to the best of that author's knowledge there is no health issues with this child these two ladies who dedicated a part or most of their lives to d c s and helping children they didn't there was no deliberate indifference they didn't know or even become subject to be aware and say we're just not going to have this kid tested they took the children the child to all of the medical appointments the cliffords testified to that as well dr gonzales testified to that as well so you know it's also possible that they're you kno the records in addressing i don't know if you want me to address but the issue that he's raised about his suicide and the affirmative defense being raised by the court we believe that has no merit the court specifically in the order said that this isn't relevant you know they were just talking in the order about whether there was a mistake for them or mistake is not a separate affirmative defense from qualified immunity that's appears to be callahan and bud's be econo economy which is out of the th circuit of the says mistakes in judgment or facts or law are covered under qualified qualified immunity so we don't believe there was any need to raise an additional from a defense we don't believe that the court actually did raise a suicide on the affirmative defense and even if they did we don't believe it was something that the court relied upon going back to the subjective awareness we believe that the it's an issue of what they actually knew at the time we believe that this case is most like into jackson be west out of the th circuit  also out of the th circuit and housing and the jefferson county also wanted to live a circuit if you read jackson the west end tauzin both of them talk about situations where the guards are both prison cases because that's the standard for children custody but both of those talk about guards relying on medical opinions to some extent in in housing it was a woman who had a miscarriage while in prison and she had complained over and over throughout the day  the bleeding and of abdominal pains she told the guards over and over and the guards got a nurse to come to come to her nurse checks are out in there says you know she needs to be seen by a doctor but this isn't an emergency she's ok for now so she doesn't seem to you know she actually doesn't get seen by a doctor at all because she has a miscarriage shortly after that the district court had denied summary judgment for the defense in the th circuit stepped in and said well they were relying on the opinion of the medical professional who said this was an emergency so how could they be subjective aware that there was an emergency to come to that inference to come to that subjective awareness they would have had it disregard with the medical professional told now in this situation i know we don't have statements from medical professionals but there are things we can d logically from the medical professionals the child was in the hospital for seven days we know that a lab test was done otherwise they're going to confirm that there was cocaine in his system and we know that dr gonzales saw the child you know there's a dispute inference but yet the two defendants are held to be should have drawn that of an inference or that it was that obvious mr stanton ellie alluded that there was hiv training for these two individuals i would say that the testimony said there was a few courses for you'd we believe that the law was not clearly established as to our client's duty to or responsibility to obtain hiv testing for this child and if we look at the law from this court's case a few years ago in melton versus absent this court said that col qualified immunity protects government officials from liability for civil damages and so far as her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known and we look at that at the time the actions should have would have taken place or should have taken place which essentially means that we're looking at clearly established principles being refer this child to for each i v testing the child had already had an extraordinarily long hospitalization after his birth seven days is an unusual time period to be hospitalized  social workers did get on the case fairly quickly within a week or two and and at least the records show that the  appointment slip in the record the judge did disregard it for the purposes of summary judgment and we saw it well around on which the judge rejected that document excuse me why did the judge reject that document  the it didn't have a date on it or a signature on the appointment form did show there was an appointment for april th and i think it was for summary judgment purposes since went on for pretty much through two thousand and ten there was testimony by the caseworker that she had seen that there'd been no initial medical screening she could have told her supervisor who would have made that i guess theoretically so so they weren't told to rely one hundred percent on on an assumption that the medical professionals had done something right well our social workers are not they don't have medical training they're not doctors or nurses or that they could notice that there had been no screening that's something that would have been within the purview of their experience and if they had noticed that they could have required that made that happen right but they they both did not see from what facts were before them or at least when questioned eighteen years later at their depositions well that's a different question whether there was sufficient facts there that they should have made that referral is a different question but my question is simply they couldn't rely one hundred percent on the realization for the baby and lisa was there impression that there was a full medical screening done at that time well let's say that different case so you don't where they are conceding anything about the facts of this case let's say in a different case if social workers are our objective lea aware that no medical screening has been done with their experience mean that they should request some kind of medical screening i think in general probably yes but here in this kylie our client who was she said she was deposed and she said that she would not have accepted custody of the child if she hadn't been given a full medical screening i recall her testimony correctly another point and i think we think this is a real gap in th case there's no evidence that the child contracted the h i v virus from the mother nor is there any evidence that the mother didn't fact have h i v or  clearly established that the child was entitle to an initial screening which would include testing for communicable disease diseases including a hiv well the our clients would have had to have known that it was a clear violation of law back in two thousand just talking about what law was clearly established now not what the actual i don't think there was much if any law there other than to give general medical treatment to the child for what they did know which was that the child was born with cocaine in the system that he had a few other not very serious conditions or he was underweight and regular well baby treatment from then on do you dispute what your opponent has said about the statute in the administrative law at the time regarding initial screening and testing well i we believe that that does not mandate hiv screening or testing specially under these circumstances  says should not shall and so it's non mandatory you i think with the st issue i should raise here is that defense can can make some kind of assumptions that there was medical records there were medical records what we do know is this there were medical records in the file there were a plethora of medical records but what the lower court ruled is that it's abundantly clear that in the st six weeks there are none and that the two parties knew of these factors so then what we have to do is we have to say i've a question about the factors do you do you dispute the contention that no one was aware during the st six weeks of the mother's prostitution history or heroin history now we don't know that the fact is your honor we don't know the file like i said for the st part of up to about a month of the child's life the records doc clear with any medicals and with that type of information we're not exactly sure alternately when that was placed in the file at least when it comes within the st six week period we know at some point they would have discovered it the heroin and the prostitution those were things that were related to her background so then what we get they were in records of previous d c s files so to d c s have that information in their possession in the st six weeks absolutely they did if they had conducted an investigation into her background as it relates specifically to this child not the other five cases that they had they would have certainly found that so then it would have been in the file are are those two facts important pieces of the puzzle that would suggest that that child needed hiv testing say that if you were going to choose between it's i v test for and heroin addict and i cannot exist you only had one when you ordinarily key factor here is whether or not there was a question for the jury to determine if they were deliberately indifferent and you know i know that there's the direct subject of standard but this is a novel case in the sense that if there is ever a case where the court is supposed to say a lack of medical evidence a lack of any of the testing being done within that six week period is something that a jury should decide is it that complete lack of medical evidence sufficient to go to the jury to make a determination that in and of itself that's deliberate indifference which is ultimately what we have here that there's no evidence that they followed up there's no evidence of the child was tested there's no evidence within that time period that he received any kind of medical medical care and you know they it they did testify that they took a course that was a weekend course for forty eight hours on hiv foster children i mean it would be kind of hard to believe that wit and from riley weaver at some point her deposition says she didn't think you had the authority for testing but if the court looks at our briefs when i specifically asked her was she aware of the florida standard and the florida statute for testing for communicable diseases she specifically said that she was and then when i asked her did you do that in this case she said her exact words were i don't do that and then she says if if it was not in the file i could have gone to a supervisor to ask if it was so we know that we know that she knows that she had the authority to go ahead and ask for that test and if it wasn't in the file that she would go to her supervisor  sure that it was done riley on the other hand what she testifies to is under no circumstances that she had any authority whatsoever to have a child tested which clearly controver any of the statutes any of the rules in the administrative code and certainly contradicts the weaver testimony which says yeah you know under florida statute i was fully aware that i had the authority to have that testing done and if it wasn't there i would have asked to make sure it