what i believe is an endemic problem in some federal courts and in this judicial circuit where the the ultimate arbiter of who's telling the truth and who's not the arbiter of credibility the arbiter of contested facts is not sworn jury of six or eight people who are going to decide who is right and who's wrong but is rather a district court judge who acting outside the scope of his review makes those decisions on his own in the decision that you're chuck put forward he talks about that the plane his entire case is a house of cards it's a quantum inferential leap that the plaintiffs waived his there was an extensive discussion in those briefs about deliberate indifference to serious medical needs deliberate indifference to serious medical needs is a much higher standard than a state law negligence claim the entirety of the briefing put forward by all parties focused on the credibility of mr royce and the credibility of other proof that was put before the court will primarily mr royce's credibility there's a claim that you know his his complaints about severe stomach pain about vomiting which would be indicative of having severe gall stones were never conveyed to medical personnel at the former county jail based on the medical records of the phone can't you say at one point in your briefing that that contested fact at the heart of this case reflected in the log book that was prepared by a corrections officer that mr weiss was complaining of negligence there are three statements from inmates who indicated that mr royce was repeatedly complaining  and mr plummer mr barton made those complaints i'll be at that they were discharged from custody prior to mr royce being sent to the hospital but importantly freddy barksdale who was incarcerated  house with mr boies throughout the entirety of his detention indicated that he was complaining consistently for weeks about these issues before he had to go to hospital and that his condition became much much worse in the four to six days before he left for the hospital and that it was evident to him as a lay person that mr royce needed medical care now so that's the st component of where the proof that the point of put forward obviously the nd component is the point it's extensive testimony stating as much the plaintiffs said this deposition i was complaining constantly about these issues furthermore in support of a an expert disclosure that the defendants themselves referenced or excuse me an expert disclosure and that expert was deposed the defendants themselves referenced dr eisner's testimony in their submission to the court and that after in that expert report said if it's true if mr royce is to be believed that he made these complaints this is a breach of the standard here this is deliberate indifference to serious medical needs doctor i sure was was cross examined extensively by the defense attorney from montgomery county on those issues and he said the same thing over and over again if he made these complaints if this is true this is a breach of the standard of care  the in the final point i'd like to raise and this is a more subtle point to to your question judge livingston there is definitely an altered medical record here and these medical records are part of professional medical record keeping system that you'd find in a hospital you know where there's there's going to be time stamps if there are or if there are edits those are going to show up this is a couple of nurses using  the medical records from may th two thousand and fourteen filled out by nurse addie at ten forty in the morning says mr royce was observed doing pushups the day before national and now the defense didn't preserve any of the other video in this but more importantly lieutenant crenshaw who's the jhelum in a stranger testified that he's the only one that looked at that video and he didn't look at that video until after mr royce went to the hospital so the whole defense of this case we've got our medical records our medical records say royce wasn't complaining well i got one medical record that i could show all day long on was fabricated after the fact i didn't quite and stand it when i read it in the brief and i said guess i'm still a number again one thousand two hundred and forty four thank you that is american medical record that was prepared by tina atty who is a defendant in this case and in that record she said it ten forty in the morning and this is several hours before mr royce goes to the hospital i looked at the tapes from yesterday and i saw mr royce doing pushups now we turn in crenshaw testified that he's the only one that had the authority to look at those tapes and he's the only one that did look at them and he testified that he looked at those tapes after mr royce went to the hospital a day later and you'll find that testimony at pages eighteen million one hundred and twenty one thousand eight hundred and thirteen of the record on appeal  thought you were claiming that they fabricated their medical records that is a medical record that was fabricated the the evidence of him doing pushups the evidence and didn't push ups is not fabricated the timing on the record is fabricated that record was clearly created after mr royce was in the hospital so there's ups i misunderstood i thought you were suggesting that it was the records of his the degree of his complaints that were fabricated that's not what you're claiming it's this when they saw him do the push ups is when they saw him do push right now just to finish this point you're not disputing that there is a record of him doing push ups materiality of whether the declarant saw it before or after e went to the hospital there is no dispute that the day before he was went to the hospital he was doing pushups if i understood you correctly now you do judge reggie ok so what's the materiality of the purported faults of occasion of the viewing the materiality is that it's reflected that that record was created on their twenty one dollars does that matter well if i may be missing something what does it matter if there is no dispute about the at the actual date of the push ups because it was a record that was created to reflect that it was made before mr royce went to the hospital and in fact it was made well after and as far as we're concerned it may have been named after myself clear in any event if i could just take you back for a minute to the degree to which you have evidence of  from jail twenty three days before the plaintiff's hospitalization his testimony was that he saw seven to ten days before your client was taken to the hospital i understood that  not be possible now in light of his release date is that right i would agree he was not in the jail at the time the way it is that burton was released thirty six days before your client was hospitalized testimony says that if i may no that's that's not possible is not possible was the way that that deposition was conducted that led to that testimony being proffered i mean you know there was an opportunity to correct the point is it looks to me like those depositions do not provide evidence of complaints of serious pain in the days right before the hospitalization so what are we left with that that  about three to four weeks before being detained and he saw the plaintiff complain about medical problems daily but i don't think there he says with what degree of severity and judge reggie i respectfully disagree he did detail in his affidavit that in the four to six days before mr royce went to the hospital his condition became much worse and that it was a good lead to quote from the affidavit it was evident to him as a lay person medical care right now the basic thrust of your complaint is that the degree of carry was getting in the prison was not adequate to his condition right that it was too conservative it should have been  the the condition more aggressively now am i right that once he is hospitalized for the st few days in the hospital they are also treating conservatively that is correct your honor the but the problem is is preventing pancreatitis in the st place once you have pink retires it's too late you can't really do much with it but it's the goal stones that go down into the through the bile duct that block the duct to the the thing can cause the pain on time just trying to deal with the fact disagreements about treatment do not state a constitutional claim unless they rise to the level of client but that would be mr voices testimony that he was complaining most if worsley about farming about severe abdominal pain and that we mr parks knows after david where he detailed similar testimony that mr boyce was complaining about the issues and he him was ignored i agree with you judge reggie that the case authority is if there's a disagreement over treatment that doesn't rise to the level of deliberate indifference to medical they certainly rises to the level of negligence which is an issue that  frankly during glossed over but if you if if you are presented with the condition in someone reports to someone reports to a doctor and in a in a prison and says i'm having chest pain and that you know and that chest pain cardiac condition he has progressed and he has a heart attack and an expert looks at that and says hey if someone were to treat in this cardiac condition earlier that would have prevented the heart attack that can substantiate a case for deliberate indifference a serious medical needs and the hypothetical i just described to you ron is the same thing is is is what happened with mr royce except it involved a different work he's got these go stones gallstones are a serious medical need they need to be taken care of his pins his pancreas is used or excuse me his that often resolves itself so you're in a situation where careful attention can be in excess even outside of deliberate indifference even if we are thinking of it just as medical malpractise can be and in appropriate treatment careful watching to see how the what progresses i mean i and i understand there are a factual disputes about whether there were more severe complaints and looked at the record at that that it but it would have helped your case dramatically if if the facility had period before he ends up in the hospital where he things are becoming severe you talking he's talking about you know vomiting up blood he says that's it doesn't get any worse than that and you know by and by that this is a typical situation where you have a preventable medical the any pounds brief but part of the reason why this happened from my perspective is is mr royce's counsel is that you have inadequate funding for medical care at that facility you have nurses making medical diagnoses which is exactly what ners addie did which is way outside the scope of her practice when to call a physician when not two nurses observe and report they observe and report to a physician and get direction about what to do they don't make those decisions themselves nurse that you do that repeatedly in fact there's evidence in the record the corrections officers are doing that as well and that was going on at the county jail for fifteen years and the commission of corrections told the sheriff to stop doing it thank you for your consideration my arguments ok i'd like to focus on three points in argument today still the deliberate indifference the mono and the supervised reliability portion but i'll address mr keach is state law issues as well deliberate indifference as was noted in the in our brief the evidence of an altered record as your honor pointed out is not relevant to the symptoms of mr royce and frankly is likely explained by misstating form play as as i noted in our brief plaintive himself misstated the form with one point by several years and i grant you he does have a learning disability but he it's clear he knows how to fill out sick call slips and at one point when he had an angry exchange with the nurse he complained of bail and adult problems so i would i would contest an assertion that he's not capable of addressing his own symptoms i'll start moving to mono plaintiffs evidence for example the the with respect to the correction go officers making diagnoses defendant laurie addressed any shortcomings with the commission on correction two thousand and seven and has while he has expressed some minimal concerns about staying within the budget generally he has been adamant that there is no policy to deny medical services to inmates at the fulton county correctional facility i want to quote from captain curtis on page nine hundred and forty seven you do the right thing if they the medical staff deem it necessary at the inmate has to go out as in the provider than the inmate goes out that was a standard for care that was followed in this case your honor has pointed out it cases today why a summary judgment proper we have a lot of evidence for trial but why a summary judgment proper it's proper for two reasons one the high standard that has to be met for a deliberate apathy i'm sorry what about the freddy barksdale yes here is his statement about plaintive symptoms are inconsistent with plaintiff's own description of plaintive symptoms we we look to the st mary's hospital records which even plaintiff's expert admitted are above reproach and they have no reason to alter any records and mr royce indicated understanding is the st louis st mary's experts show that the st mary's hospital records show that was the that was when he said when did you start having nausea when did you start at the right corey that's my understanding yes in any event turning to supervisory liability for defendant lori there are of course five cologne pataki factors i'll just focus on two  dollars the nd one about being informed of any violations of rights his constitutional rights he had no personal contact with roy's and he relied on his staff to provide care he never questioned a medical providers decision to give send an inmate to an outside provider out i'll try to stick to my time so let me get to the closing now qualified immunity is goal is to avoid a trial for officers who follow the law so if we go to trial on this the harm has already been done it's clear from the evidence that it perpetuates for defendants and mr keach mr keach is right judge sharp said his case house of cards that is it relies on inference and speculation and that's not enough lastly let me say mr royce wants to open a pandora's box to a flood of litigation that we cannot any more trust medical records of a correctional facility without when we need more evidence then one misstated form about exercise about exercising and oneself thank you rogers and let me say closing thank you for your permission to file an oversized brief in this case thank you good afternoon your honour's may please the court george hofmann representing the appellee in this matter nurse practitioner amy gagne nurse practitioner gagne was not deliberately indifferent to a serious medical need basically as you've heard today races disagreement with the medical treatment that he received does not rise to the level of a constitutional claim in fact royce's on able to satisfy either prong that's necessary for deliberate indifference to claim objectively he received adequate th when he made that complaint he indicated that he had been prescribed a medication for his headaches which he believed was causing his knowledge first actual dominant complaint was on the th at which time he indicated that he was as condition deteriorated significantly in the four to seven days before he went to the hospital vomiting loudly at night during three occasions during that period and i think with respect to the affidavit you have to go back to as counsel indicated if you can't look at that alone in a shell you have to look at it with the rest of the evidence particularly as st mary's hospital evidence indicated specifically in response to as counsel indicated when did these symptoms begin he indicated the prior day the physicians at st mary's hospital who were treating him with respect to this what that question really was focusing on and to the extent we with on may th when officers learned of his vomiting they actually moved him to medical isolation that evening during the night on may th nurse practitioner gagn learns of that that morning early in the diet let's give him medication for his nausea and let's carefully watch him which they do throughout the day she receives updates throughout the day as to his symptoms when she comes to the facility that afternoon and sees that his symptoms  changed that he does have tenderness she immediately transfers him to the hospital at that point that that's clearly adequate and reasonable medical care in fact multiple experts  indicated that that her response to the changing conditions was adequate in reasonable so that brings us to the next problem of the objective portion were the courts forced to look at the delay so if anything we have a delay from six am to six pm which even playing his expert said that that's not the life she would receive the same treatment whether she he went to the hospital at six am or whether he went to the hospital at six pm and that treatment that they provided at the hospital is person i sleep the same treatment that nurse practitioner godly was exercising at the facility careful watch watchful period conservatively monitoring his conditions and in fact at the hospital they did that for four days which is counsel indicated he also has a medical malpractise claim most part of that there's a proximate causation argument the four days of treatment at the hospital would certainly eliminate any proximate cause ation with respect to the state law medical malpractise claims setting aside the fact that she didn't deviate from any accepted standard of care so if your honour's have no further questions we would rely on our brief in this matter thank you we talked about this form and i know judge reggie ask you some questions about this particular record in your honor if i have not answer those questions it's important to me that i do but we've had an initial now that she misstated the form and that can explain why hey she put in this about doing the pushups that that's not a testimony that's not what's reflected in the form that form reflects contemporaneous observations of mr royce that morning and she testified it was contemporaneously created so if the form is misstated that's it that's a new fact for me and if it is misstated that means that form was created after the fact which is improper and can lead to an inference that if you don't have anything to hide why you why are you you know filing stuff put the wrong date on it after the fact and in judge as it is important for me to answer your question and you said i did not do so what more can i say about that particular item well i think i understand your point thank you  now we have this issue about the same areas records medical records say what they say mr royce's deposition says otherwise mr barksdale step is that mr parks dale's affidavit says otherwise relative to qualified immunity that's a factual issue that generally these days is decided on special interrupt or is there submitted to a jury and then a judge decides after the fact there are factual disputes not with another's deliberate indifference to serious medical needs there can be no qualified immunity because it's well established and has been well established since pharma versus brennan that you cannot be deliberately indifferent to a detainee serious medical needs now i guess and i'm very close by by saying this we have this discussion about alone in the ocean alone in a shell you look at this alone in  shell the defendant's alone on the show is my that's conflicting proof that needs to be decided by a jury there's discussion about you know the house of cards this is a circumstantial case i have testimony from some individuals who observe these things i have i believe a credible argument that some of these records may have been created after the fact and it's a house of cards i've tried i don't know how many cases from the northern district of new york now to in the ground fifteen i've had i've successfully prosecuted many cases that could be described as a house of cards there are circumstantial cases and it's the jury that decides whether your case is a house of cards that can stand