morning ladies and gentlemen we are here this morning and we also have with us on the screen judge roll singer who will be dissipating this panel i would ask that you take a second to make sure that our vid video and audio transmissions are responding she has a question but with that in mind we will turn to our first case for this morning and mr schoen lipsey against united states marshal service had the duty under its own mandatory directives and prisoner of health care standards to take action to ensure that she received reasonable and medically necessary care and in the just please start your question we'll see if it's enough thank you so sorry did you present evidence that at the time of the transfer request there was a facility available that had obstetricians available on staff to which white could miss white could have been transferred no your honor it is not our position that where she would go into labor and the liberals would absolutely need an obstetrician and they did this without first confirming that there be an obstetrician available in the community who was not only were available but was willing to provide her with upset or who care and it turned out there was no such obstetrician well i had a similar question there are two moments with respect to the marshal service there's that moment when she's first transferred to the drone coombes detention center and then there's the moment later on when the request is made to to move her from that center so i want to focus on the first one as i understand the record  the marshals but mr goble or whoever it was surveyed the available places and concluded that the drone coom center have the best medical facilities available that indeed had a track record of working with community obstetricians in the local hospital so it's hard for me to see how he's making a mistake or at least to he's not in some way exercising his discretion in a way that would put you under the discretionary x exception you know it it it's our position that this particular  they were aware that the de marshall well there was sufficient information for them to be aware that she had nine prior pregnancies she said what they call a grand multiple that is that respect or for the delivery she was of combs center does not relieve them of the responsibility of continuing to to verify that she is receiving reasonable medically necessary care and to do that you have to know something about what her condition is they have the creates liability makes the federal government was able to the extent provided by state law so is there any state law obligation to marshal service to monitor a prisoner after transfer was either ignored or not reasonably address the uninvited and if please focus separately on the marshal service at least for me and that of kankakee county yeah ok people  ok the the and the day in which the marshals service took her into custody they did no examination on her so they had no data that we would call observable data what they had is they had someone that they knew was late in the tional period and was going to have an immediate need for acceptable services and then they transferred her and they knew where they transferred her to would have to be able to provide a check to care for it was going to be essential you know what's wrong with having somebody at a place like the detention center and the woman goes into labor and you put her in an ambulance and center off the hospital which is what they did it in this case she's going in and she has a prior history of going into labor and having up essential abruption her last pregnancy that's what happened i understand that but we have another aspect of this case about the records and who knew what about that history when it's one thing to know that she's multi gravatt it's and quite another thing to know that she had a placental problem before well i can tell you that the marshal service is not wandering around in the darkness they were specifically given notice and i'm addressing the second tape of course no opiates seen or she had received o b care they couldn't find an o b that would take care of her and they were told by the county that she urgently needs to be transferred out of this facility in order to receive care that's necessary to her pregnancy and you know if you want to know what their responsibility is under those circumstances the deposition of the national medical director of the us and s was taken he said if the county can't get her here they can't find care for her then the united states marshal service has an obligation on its own to go out and find appropriate care for and they did nothing what they did is they refused her transfer and they took no action to get her care by refusing or transfer or they relegated this this plaintiff who was a high risk pregnancy to begin with to continue custody in a facility they had no care for and that's the way it turned out she got no care while she was a pretty little custody there and by relegating her to custody in a place where there's no care that they have to tandy became completely dependent as did the child she was carrying on their providing care they're taking custody of her constitutes an undertaking of the prenatal care of this of this  pregnancy i mean she couldn't go out of the facility and get piranha or own she had to rely upon and did to rely upon the county to provide it and it constitutes an undertaking and under the i think it's six one  i got those statutes right when you undertake the management monitoring care or treatment of a condition and you do so incorrectly or you do so not at all you are liable if two that you don't have much to hang your hat on although i am going to be asking the county the same question the other way what because on the one hand ms white is repeatedly saying as judge drove her point out that she's fine she doesn't need anything she's refusing on one occasion even to be seen by the physician's assistant even though he wasn't to statical specialist there's a certain amount of basic information he could have collected so that's all bad for you on the other hand we have the blood pressure on intake it one sixty one over eighty six and we have the september sixteen reported labor pains to which section and a forecast of how early she would deliver but they didn't get these records as far as refusal of care there are credibility problems with the testimony that witness that are massive meeting no record exists no record no i mean i understand the theory here if it's not in the chart it didn't happen basically which is the way the medical profession works but she's and as far as her being in fine condition risk factor and you know going back to the the u s marshal service when they were and when they were told she's not getting essential here  they had when and then when they refused the transfer of her so that she would get it they relegated her to stay in a place where shushi didn't know here that amounts to a i think it denial of here and the person who is in charge of enforcing their standards didn't even know the standards existed he was not able to ensure that she received here here viewed by the standards because he had no idea the stairs existed he had no idea what their contents were he didn't even know what the responsibilities in terms of health care were that the u s embassy had to this just person and you know so far as discretion it's responsibility as his job responsibility as someone whose job it is to enforce these standards to be aware that he enters his books who enforce there's no discretionary decision about she should i or should i not read this which i am what you're saying is that there's no evidence whatsoever in this record at a facility with a bail all with on site obstetricians at the time noted that there were four options of facilities that he was considering and he chose the j c d c as chief judge would noted because he believed that it provided the best care of the two doctors and had two nurses it had a physician's assistant and it had what the district court referred to as a relationship with an o b on an as needed basis so at the time he makes this recommendation makes the decision actually to send her to j c d c or the calm center or whatever i prefer to call it that he you're saying did know that in the past they had been able to use community successfully that's right even though it turns out not to work quite as well this time to the ex ante he thinks that that relationship is their ex ante here he believed that that relationship was there in the no reason to believe nor did the j c d c have any reason to believe that it wouldn't be there in this case so how does that help the september seventeenth point in time obviously the placental abruption doesn't occur until the morning of delivery because the fetus could have been correct the record on this point i want to emphasize what was actually communicated to the marshal service or what was alleged to be communicated to the marshal service in that phone call from chief downey and it's rep it's reproduced in the district court opinion and what chief downey said was that i contacted indiana that's the marshal service because of the issue of not being able to find dr this original dr hale and just indicated that we can't find an o b doctor but we would keep trying however if they could take her back you know we would just assume send her back to indiana and let them find an adequate place for her so it is not correct it is not a correct representation of the record that they indicated to her that there was an urgent need for a transfer that she could not receive care what was communicated or at least what on this record the court has to take is communicated was that they said that they were having difficulty finding an o b doctor but that they would keep trying and that is precisely what they did and so the question for this court is whether or not there was a mandatory obligation on september seventeenth to transfer her to some different facility that didn't have the same degree of medical care as the j c t she offered that would require immediate indicator that she should probably have been taken off to the hospital right then again on this record there's no suggestion that was communicated to the marshal service but even if it were that would not give rise to a mandatory obligation to transfer miss white to a totally different facility which also would face potentially the same problem that is that facility would not have an onsite obstetrician so that facility would be in the position of having to find offsite care in the chief of that facility also recognized was that if there was an emergency need for care if they decide if they determined if the county determined that she was not receiving adequate care they could always send her to a hospital but that was an obligation of the county and not of the marshals service and the contract between the county in the marshal service spells this out it says that upon transfer that the county can always decline to accept a federal detainee but once it accepts a federal detainee medical care for federal detainees shall be provided by the local government that no i understand i understand that is what concerns me is that the moment of september seventeenth when the marshals service for a eight and a half month pregnant woman standard of care which would suggest that she needs to be seen by an obstetrician at least once a week and so we know that more than a week has gone by she hasn't been seen by anybody it seems that the marshal service easily could have said even though you can't transfer here we are authorizing you even though it may not seem like an emergency to take her to the hospital there's going to be an obstetrical resit at least at the hospital but they don't do that they don't take a step which would have been well within their ability to take some upon notice i guess i have two responses chief judge would the first is that there is no dispute that the county could have taken that step at believe that that step was warranted that is everyone understood that had an urgent need for care actually arisen that the county had the authority without providing notice to the marshal service to send her to a hospital and the second thing that i would note is that even if the court believes that that would have been the appropriate thing to do even if the court thinks that that would have been a reasonable thing for the marshal service to do that simply does not give rise to an option lists an option lists of course of conduct that someone in a deputy marshal i don't think that that's quite right i think that the marshal service does have a duty to ensure medical medically adequate care and the marshal service fulfills that duty by contracting with local facilities who then assume the responsibility for providing the care to me ok so nothing interrupts that cause even if the local facility gets back in touch with the marshal service and says we can't do it everybody quit you know we had to shut down you know hurricane jose hit us you know or whatever they the the proper course of conduct as everyone recognized was that they could always send her to a hospital they could always under to emergency room and i think even counsel for mr lipsey recognizes in his argument with respect to the county that what they should have done was they should have sent her to emergency room earlier and i don't think that that argument can be reconciled with the arguments that the marshal service had a mandatory obligation under its own standards to transfer to a different facility that may well have faced the same issues as morning my name is michael condon i represent the king county defendants in this case and as the district court correctly noted there is no evidence in this case of any wolf or wanton conduct on the part of the kinky county defendants chief justice on a white and september eighteenth he did fill out a log no on that date and testified in his deposition that she refused health care and he explained the risk to her of refusing that health care w herself admits that she refused health care on that date and that she signed a written treatment refusal form so it is undisputed in the record that m seven years in this case and look at what was happening and what was happening was we have a woman who was on the lam for three months and got no o b care when she did all be chair probably in the hospital before that the care show i mean the treatment showed that there was no more analogies with her pregnancy well but the bit let me back up there there are three things about this record fees to be the county defendants that concern me and i'm aware that were in this immediately observ e willful wanton legal construct one of them is that the intake the blood pressure of one sixty one to eighty six coupled with the expert testimony that that is an immediate red flag for a woman that far along in her pregnancy the second thing that bothers me is that september sixteenth especially in the light of this blood pressure knowledge they do nothing when she reports labor pains they just assume oh this must be false labor there's no indication that they follow up and that seems to me a moment when they probably should have taken her to the hospital and seen what was going on thirdly there's a dispute of fact about whether nurse sangster actually did attempt to obtain the medical records from providence hospital she's given according to her the story that they didn't have records for a patient by that name but on september twenty second dr taylor who asks for the same records gets them promptly so it seems to me there's a disputed fact about whether they made any effort to obtain records so those are the those are the aspects of this that worry me the most if i can respond to that going in backward order your honor of first of all there is no disputed fact in there say mr testified in there's no there's no testimony contrary why do we have to believe her when we find from dr taylor that actually the records were right there ready to be sent sure she says she did it but that doesn't mean she did it well i mean she testified under oath that she did it in the and we have other  done it they would have come right away i think it's speculative to say that it would have come right away to her good for dr taylor what it did for dr taylor the second thing is i think that that it's not in the record your honor said that we did nothing and the sixteen actually went on a white was brought to the medical clinic on the sixteenth and nursed bill saw her and similar to when they were saying stor went to the housing unit on the twelfth and talked to normal white testified that she told that there was no complaints she had no complaints in her pregnancy and went on a white as a mid that she never reported to anyone at the drone comes attention center that she was having any problems with that koppel i'm with that is that there's a log book entry that says she reported labor like labor pains and so again maybe she looks she i'm not going to give her an award for citizen of the year but it's a fact that there's a log book entry that she's having these pains who are here on summary judgment if she was having pains in the log book accurately reported which you just told me for sixteenth from nurse hill saying that she saw one or two white and that one norma white said she was having no problems with her pregnancy and specifically denied that she had any labor pains but what do you do with the logbook entry saying that she reported labor pains and nerves sank stor response to that report she reported labor pains in the morning nurse jill saw her that afternoon in in the record you'll see from her blog note she sees her in the afternoon and asked her the same questions are you having any problems are there issues with your pregnancy no there's not one white admits that she says i didn't have any issues with my pregnancy she said i never told anyone that i was in labor but the law book entry remains if nurse sangster had sent her off to the hospital upon the report of the labor pains we wouldn't be here or your honor i think that that is as is the experts at testify in this case often women complained they were having what could be false labor planes contractions that's why she was brought to the medical clinic and the nurse asked her all these questions and she denied she was having any labor pains and favor she signs a form refused signs it written refusal for now and admits that she refused treatment and mr menard said he would have checked her abdomen he would have asked her questions about her prior pregnancy so we can get we can get the records from providence evidence in this record of willful line of conduct on top of that they also made repeated efforts to get her seen an obstetrician and in fact an appointment was made for her on september twenty ninth no one knew she was going to deliver her baby before then you know i realize it although to go from september tenth to the twenty ninth at her stage of pregnancy with no and counter with an obstetrician against trikes me is well beyond the you know ask her questions about her pregnancy and meanwhile you know we can't look at this in a vacuum when older white herself is on the line and for three months she had not gotten any you'll be treatments in june well i mean that doesn't excuse not i'm not i'm not suggesting h case that it's clear that number one under illinois law there's no evidence of willful one conduct on the part of they were trying almost ten days to do things and secondly under six one five and six one six which is there are afforded immunity for failing to examine and failing to diagnose if you look at the plaintiffs complaint in and an appeal the bridges with the problem you know there's no claim here about  based on her own testimony so what we have is we have a pregnant woman so but there's no all it's unlike the american national bank case where in that case the doctor failed to  treat the bill marler who was in a it's called a transverse lie position a breech position failed to treat her after she had been diagnosed with that condition and there was prescribed treatment for that condition that's not what we have here the placental abruption happened at the hospital that morning and all the experts are in agreement was an acute event and it happened at the hospital but it certainly did because she and the baby both would have been dead if it happened elsewhere so it's sheer speculation to say that if she had gone to see an obstetrician that would have been any different result and in fact if you review dr and well the different result would have been you know a c section a couple of days before which would have averted the whole thing even dr gonzales in his testimony your honor says that he can't say that he says because one if she had been taken to an obstetrician it is more likely than not the result of an the second reading at the hospital was that she had to find twenty that was after she's already at the hospital what i'm saying i've never typed that was never diagnosed by the cane he county people that she had hypertension they tried to see her on the eighteenth and mr menard had got a chance to take the blood pressure reading you get and it was high and he would have done something thank you very much thank you  that she delivered her prior pregnancy at thirty four weeks for her her last pregnancy she was at term at thirty four weeks not thirty eight when they got an obstetrician to agree this yr but thirty four what would you do with someone who day that's the only care that she refused to attend sick on that day she had attended sick call two days earlier that she wasn't refusing he had there's no other proof that i did two days earlier she's denying that she's having early labor it's justified that even if i think that there are false labor pains i have an obligation to transfer her under the standard of care of immediately to the hospital to an o b so that nobody can make a determination whether the contractions are false or whether they're not false no one ever took any action and that we don't delegate the decision to the patient we don't delegate it to the nurse to your skin to make it she has an obligation right then game over you to correct any overseen by the o b well i'd like to talk about is i went to see her and i told her i'm going to perform and obstetrical examination at you and you'd better be there for sick call so that i can do this there's no record of any personal meeting we will cop to the fact we will admit to the fact that she refused to attend sick call and one day but there is no record that that he ever personally met with her and urged her to to undergo an o b exam that he was not qualified to perform on her the first you need an o b take her to the hospital actually if if we were this is not in a wasteland that does happen if we were to drop a compass point and draw a diameter of i know ten or twelve or fifteen miles there would be a lot of ever took her to the hospital no one ever did anything to get up sceptical carrefour until it was too late and you don't wait until she has an emergency discussion about she wasn't having an not if you wait you're going to be delivering a dead child you especially are if there's a risk of an oppression and in this case interruption happened earlier by history thank you very much all right thank you very much thanks to all