it helped us even though mr vincent produced a declaration from his treating physician dr black church in which dr lash declared the defendants breached the standard of care by failing to provide mr vincent with physical therapy or chiropractic care our position is could certainly opine on the standard of care for somebody who's having back pain so that he doesn't need to meet the expert requirement because so in terms of filing record opinions regarding causation and standard of care because such issues are inherent in the physician's work we also cited to you the north's case but i think the problem with that is inherent in the work of the physician and treating but once you go beyond treating you say i want you to examine other records too and analyze the standard of care is and that doesn't take an out of the treating physician rule i don't think so your honor it's my view of the case law and the field and touched on this if the doctor it's all about when the it's not about it's when the doctor formed the opinion and if the doctor is really in reviewing the record which is something that a doctor would do in the normal course when treat patient determines oh my gosh this previous doctor really messed up that determination if it's during the course of treatment and not after as a retained paid expert that that is developed during the course of treatment and in the few of the case for example the doctor reviewed all of the previous medical writer records of the patient and then determine what the standard of care was they just did that during the course of treatment even if your honour's you disagree with this analysis and say that standard of care always has to be determined outside the course of treatment mr vincent still should be able to be given a chance to go back and and there's nothing in the record to suggest that mr vincent couldn't have gone to physical therapy or withstood the pain had any timely physical therapy been get i don't understand that part because if he wouldn't they would be able to argue as a for a reason for no damages at trial but here there's nothing in the record suggest or to say without a genuine issue of material that he wouldn't have gone thirty days earlier he didn't go thirty days later because he was in so much pain he couldn't wear the black box and let me just understand what you would say as materialization fact go back for a trial and basically you'd be arguing over whether in those thirty it or they didn't make him wear it either way we're still really talking as i understood it the final approval came on december fifth and talking between family fineman february twenty eighth so we would have to say that is that even the doctor said sixty days it basically twenty three days delaying is a constitutional significance such that you would have a trial would that be the decision to ignore regardless of the top without it there's no reason we would have could not to deliver in the end and i am very sympathetic you know to not getting this and i don't know why and we'll have a chance to figure that out but my question would be is simply this scheduling timing a magnitude that it is a constitutional violation i mean what if the doctor had said ninety days that we wouldn't be case was transferred from the central district of california to our office and you know that's i came on to the case because subsequent to that i actually i don't directly know the reason delay from the time a medical professional doctor hernandez fernandez said you need physical therapy in the time that it actually happened that some of that was due to people in the medical staff telling vincent hey you're going to get out of prison soon anyway you can go out and take care of this on your own you know there's some evidence of there's there there's there's no support for the notion that any of the five individually su to my question you tell me there's absolutely no evidence in the record that any medical professional in the prison system ever told the plaintiff in this case that he was going to get out soon anyway and he could get is treatment in the outside world you tell me there's absolutely nothing in the record the only thing in the record relates to alleged statements set forth  san involving the deputy warden and the health services administrative statements may well before the physical therapy before it was actually signed after that point there is no evidence whatsoever and in fact the evidence of record tends to gain any conceivable inference to the contrary because after the referral was signed the prison utilization review committee approved the referral and then the appointment evaluation was an x casualty throughout that entire course of time mr vincent continued to receive extensive ongoing and continuous medical treatment including injections with anti inflammatories pain relievers steroids muscle relaxants and other from my perspective here's what we it boils down to is that basically an order was time for sixty days and he didn't really get his physical therapy appointment even scheduled for ninety days and his allegation is that basically his condition certainly worsened over that time as a result of not getting it within the sixty days and in his view you can draw these inferences that even if you didn't give him his physical therapy whether it's because he's going to get out or just because of overloading or whatever that that creates a material issue of fact so my understanding i understand why you're saying that as a matter of why that claim fails based on your current argument because what he's saying is i understand is that scar tissue and other things formed during this thirty day period that left him with permanent he got treatment to address an issue that's almost exactly the case and in mitchell where there was a nine month away and delivering prescribed physical therapy there's just a one month delay we know from the record record nothing in the room right mean there's nothing from the prison officials saying this is why i took this length of time we had a change in who provides outside orthopedic or physical therapy services we don't have enough staff the facility is over crowded and he there's nothing like that in the record right there at the record does contain some evidence that these services were contract e that he continued to receive continuous regular and extensive other treatment modalities the good let's assume for the hypothetically that the prison officials here it's a ed we're just not going to treat we're not going to treat treat serious injury why doesn't that state a cause of action for delivered interference again if that's hypothetically i know you're wrapped around the facts of this case but what your argument seems to be is we give them pain physical therapy because he's getting out and we really don't care we're going to give him some pills and if the evidence then came then hypothetically in a different case that the failure to treat as permanent injury why would that state a cause of action for deliberate indifference patient would be harmed by such that way so i'm giving a hypothetical when you're answering with your argument i mean i understand the difference potentially between the hypothetical one the argument you're making but my question is if prison officials deliberately set out to ignore a recommendation and a referral and said we're not going to do it we're just going to give you pain medication and that should be enough what does that say the climate permanent injuries of all if they make a decision they're not going to they're not going to follow the recommendation and i think follow the referral he said you know you're going to get out in the six months so we're not going to treat you even with you that nobody involved as a defendant made any statements about the language the fact that he was getting out we then have a situation where we know it was twenty five or thirty and he does make an allegation that that caused you know for your medical degree days and whatever how do you evaluate when it's the government's burden once a case like that is forward to to then introduce some evidence or when you just leave it to the plaintiff's allegations to figure out if they if he has raised a material continuous provision of other medical care during this period of time so you can on the question of harm date they can't be on summary judgment and i think really that's what the what the government needs to do is to the issues on which they have the ultimate burden of persuasion a trial and in this case the government has done both we've pointed to affirm the facts the tension the gate and inference of deliberate indifference including the continuous provision medical care the actual scheduling of his physical therapy treatment so i guess the one thing that has been mentioned here that the government didn't do is we don't know why it was delayed is there any evidence on the record as to why it didn't get found or made a finding that physical therapy needed to be scheduled within sixty days so the fact that some other pain medication is given that doesn't change what the medical you know just stress that the burden is on the government provides evidence and that the government is not providing evidence showing that there was no harm during that thirty days and this may mean we step back where is your response to his argument that none  fine defendants and issue was and that there is evidence in any way to link them with their way or with any now intent after he was given the sixty day referral he what we cited to you that even after that on january fifth two thousand six there was notation is record that he has a political is there anything linking facts but i think it can be assumed that he testified to that trial because it's consistent with his records and the last the last point i wanted to make your honor is that sir the fact that a contract with an outside vendor for services for physical therapy has no bearing on you know who is responsible for the scheduling of that as a comparative thank you thank you for your argument and thank you for your program representation we truly appreciate