questions on which this court could resolve this case and the rest are factual issues that should be resolved by a jury the st major question is whether the district court correctly granted immunity under government code section eight  section forty four it says as used in this chapter and it defines what a prisoner is and in the subsequent chapters including section eight hundred and forty five dollars it makes clear that the prisoner must be somebody who is actually confined in a penal institution that could be a jail or prison it does not mean somebody who has just been arrested or detained in the officers custody in the nest that you there they use the word includes right and they'll necessarily say these are the only people who are considered prisoners and they include to these yes that includes those now there are also cases that publish cases including from the california supreme court that make clear that there is a special relationship outside of the could be prisoners in the case of somebody who is actually incarcerated but it also extends to two people who've been arrested or detained in the reasoning for that is because they're not in a position people who have been arrested decisively on this exact issue there's no there's no room for ambiguity here there is a special relationship between the officers and those who they take into custody the only other question is whether  prisoner so aside from those are the two major legal issues that we believe resolves this appeal in the opponent's favor the immunity question and then the special relationship question that in other words the duty question there is a duty and the officers are not immune now the rest is all facts these are we believe appellant is entitled to have a jury determine that the weight of credibility of the evidence because  it's it's it's not it's not the role of an appellate court to resolve those factual issues so we have at least fifteen facts though that we cited and then include and a number more depending on how you read the transcript and evidence in this case but there are these five that are material in dispute and one of them being the facial drooping face of being as you may know is a clear indication of a cerebral vascular accident or a stroke i noticed declared that she had that facial drooping was visible now the a colleagues have argued that because it wasn't visible on certain still frames and photographs and things like that you know which are which are not high resolution and they're not you know they can't be viewed  a significant factor for us or dropping it is consistent with opponent's position it's supposed miss winger's appearance and behavior consistent with both having a stroke and being under the influence of drugs  and she refuses medical treatment so in that scenario two police officers of the obligation legal obligation to force her to get medical treatment well there's two distinct issues with regard to  the refusal of medical treatment it has to be a competent refusal it has to be somebody who is knowingly and intelligently waiving is refusing that now and here in this case the facts at least with respect to that area i mean it seems she was pretty lucid they asked her do you want medical treatment she says no she then explained i was at the hospital for a week ago i had some chest pains then the paramedics come and she again refuses that signs of forms if you look at those facts i mean they seem to suggest she was pretty lucid at least with respect to declining medical treatment so you know my concern is if you if you have symptoms that are consistent with both drug use and a stroke what are police officers supposed to do aren't they kind of damned if they do damned if they decision at that time and in refuse medical care and that the facts are actually suggest that there's no reason to believe that her refusal there would be co opted even even assuming that she was not suffering  so one of the concerns would be establishing a rule that basically says any time there's a dui or a driving while impaired or anything like that gotta take the person to the hospital whether they want to or not  whether they refuse or not so what is it the dead to distinguish is this case from your standard run of the mill this person is drunk or stoned or whatever that would that would allow us to say ok this these cases are on the sideline these cases are only illicit i think there are a number of factors to look for some of them would be consistent with intoxication you know there would be some overlap there between a cerebral vascular accident intoxication however when they're certain and certain forgetting not knowing one's name is different from you know the slurring speech and that's sort of speech of course could not know when your name would be not consistent with just being drunk or high right that by itself would be consistent with something a lot more seriously in these used to be a chief of police he has testified that based on their training and the symptoms that she was showing at the time that that he that it would be clear that she suffered some sort of a medical emergency you know i want to address  a red herring here which is that this idea that they needed to diagnose her as having a stroke that's not what we are doing they need to act they needed to recognize that she was suffering some sort of a medical emergency not  the in the opening brief as well when when officers see these symptoms that's when they are required to make further inquiry so it's not just you know everything it's not a simply a matter of every time somebody appears drunk you know we need to go and get medical care that of course would be you know a reasonable burden upon officers saying that in this situation there were a number of symptoms that the appellant displayed that were more consistent with somebody who is who is suffering a medical emergency and just to be clear is as a policy matter they're always going to be people who are having heart attacks strokes medical emergencies wired that while they're driving and that is that is the reason that officers are trained to differentiate between intoxication and those medical emergencies because taking somebody to jail when they need emergency care of course that would be to excuse that in every instance would be would be cruel so i'd like to  her without that you know and you can hear on the recording and you can see in the transcript here that the officers are laughing and joking with the paramedics kind of making light and disparaging her saying oh she hit the city car and then she kept going says my chest hurts or whatever that's you know he's speaking in in a way that trivialized it to the to the people who are attending her at the time the who by the way are not doctors is not the same as as getting her good morning me please the court i must go back on behalf of defendant garden grove police officers starnes and al hashmi i think that the at its most basic the issue of duty in this case is whether or not california law imposes a mandatory duty on police officers to obtain medical care for an arrestee who has a serious and obvious medical pekin condition needing immediate medical attention when and this is the key component when that arrest he has declined further medical care you have to look at the question of duty in the context of the facts of this case whether the medical conditions is something that also made a perfect their ability to competently make that decision i don't think the police are in a position to make that determination in this case the paramedics came out with so it's just enough that no matter how out of it they seem to be they sign a form that says no that's good enough end of story there are certainly no case law there's certainly no case law before this court that suggests that a that a conscious adult does not have the right under the th amendment to make their own medical determinations in this case the issue of whether she could miss when you're could spell her name occurred very early on in the conversation with officer  at that time officer allow me had already called for the police for paramedics to come to the scene ms winger then said you know what i'm paraphrasing i know k i i don't need the paramedics officer oh he didn't call them off the paramedics still came out to the scene still did the assassinated the disk and they did he disregard her i don't need it at that point them she was continuing to talk to them i i don't know that yes i guess my concern is like if it point one she says no and the officer doesn't sort of honor that at that point he says no let's go ahead and let the mts look at you how can you come back now after the fact and go all the way back to the thank he ignored at the st into question raises a very important distinction i think there's a critical distinction between a police officer's right to have an arrestee examined by medical personnel verses a duty owed to the arrestee where the where the officer can be liable and damages to the arrestee if the officer doesn't require that the arrestee see a medical personnel say i think that's a critical distinction there are lots of reasons why the state would want to examine a prisoner arrested before they go to jail whether they have a communicable disease whether there was a scuffle with the police and they want to rule out any fact in this case that they the police officers did in fact have training in recognising something they had yes they had some training in americus of that training the purpose of that training is to ensure that if they see somebody on the street who has obviously was in obvious distress that they can that they can make a call and they can they can call for emergency personnel in this case officer allow me didn't think that ms win or had a stroke she had her hand to her chest and when you listen to the to the call to the to the paramedics center he says she's complaining of chest pains she actually never complained about chest pains but he saw her hand on her chest and dropped to the conclusion that she's she's complaining of chest pains chest pains is not an objective i'm not sure how i don't try these i'm not sure how it helps or that he screwed up on that one because the question is the question was they're trained to to observe right is very profound many things in this in the transcript that are just so class all of this stuff is in this transcript in fact when she says she says what's your st name usher last name and she keeps saying robin robin starts accusing are blocking which suggests to me that he had a influence of drugs and alcohol she didn't show that she was under the influence and so what was it i mean it's just odd to me that if given the training that they had that they didn't recognize at all w there are lots of reasons that somebody could be intoxicated the e r doctor thought that it was drug induced psychosis the e r doctor you know had the opportunity to fully assess her the pearman i think i'd like to get back to a couple of points whether or not a police officer has a mandatory duty i would characterize it as a mandatory duty to disregard somebody's th amendment right to refuse medical care or cite is a there is a disputed fact as to whether or not she actually signed the form refusing medical care no heard that the only the only evidence that is that is posited in opposition to the motion for summary judgment was the daughter's testimony that she didn't see her mother sign it and that items estimated that that was in her handwriting well but he didn't he didn't suggest that she didn't sign it and she has never said she didn't sign it the the paramedics saw her sign it they question the validity of the signature but you'll know there she signed her name correctly she wrote robin and she wrote when are they question the signature of course the paramedics don't know what her signature normally looks like and i think one of the key components is that the paramedics who are much better trained at recognizing the symptoms of a stroke there's no evidence that the officers are trained in anything other than a couple of hours they get the you know if you have a symmetrical face and drooping and confusion and slurring and you're paralyzed on part of a part of your body you have chest pains are not just pains i'm sorry knowledge of an acute headache or disney dizziness those can be signs of a stroke but just learning your words and being incoherent and being clumsy a bit clumsy those are classic signs of intoxication they're not signs that a reasonable police officer could assume was intoxication and in fact what would have been enough to kind of kick it across the line i don't know that they're i think certainly if she was unconscious then well then she would have been able and she would have been us so that when the been an issue i guess i think in in terms of the the with what you say all be a a question of whether the police officer breached the duty of due care when you get to a trial on the negligence well st you have to establish that there is that but it's not it's not we're not talking about we're talking about negligence we're talking about a duty of due care we're not talking about a mandatory do that no matter what happened no matter what else is out there you must send the person to medical care right now but the standard rule in california is that there is no duty to render medical care so we're talking about creating an exception to the standard california rule that there is no duty to provide medical care even by police officers who are investigating a traffic accident so you know order to impose liability we have to come up with an exception to my point my point is that it would be a duty  to provide medical care in appropriate circumstances and what you described well she refused medical care she seemed coherent she signed her name she did this she did that those are all the things that you could argue said that the duty wasn't whatever duty there was wasn't say the drooping thing was drooping on both eyes if you have a stroke is asymmetrical drew facial drooping so you have drooping on one of the side of the face or the other side of the face not drooping on both sides of the face would submit that checking a box that says your eyes are droopy is not good it was their backs and said one eye droopy i don't i don't know how how do you know how do we know that the officer checked it off because both eyes were droopy as opposed to one since there wasn't a choice for one i can't answer that question your honor i can say though that the paramedics who are certainly in a much better position than the police officers to assess whether somebody is medically confident or is that she needed medical care one of them said that they all said that because she said she didn't feel well it's their standard practice to recommend that somebody who says they don't feel well goes to see a doctor but none of them said that they believed that she had a serious medical need to shim requiring immediate medical care they all said that they thought she was intoxicated that she didn't need immediate medical care but if she didn't feel well she should go see a doctor and that's it that's an important distinction i also think it's important to know that in the st appeal of this case when the th amendment issues were were before the court a pal of this court said that the police officers like the doctors at the at the hospital reasonably concluded that ms winger was competent to to consent to note no further medical treatment the doctors at the hospital certainly didn't think that she was incompetent and who's better trained than an emergency room doctor certainly much more much more training than the police officer on the street to determine whether or not somebody is mentally medically comp and i think that we reach a  dangerous and slippery slope when we start saying that police officers have to be so well trained that they have to be able to make distinctions and recognise medical issues that trained emergency room doctors don't  don't don't see maybe in this case it's just that they have to be trained a listener with the paramedics would tell them because the paramedics said that he told the officers he thought she should be taken to the hospital the paramedic no the paramedic did not say look into that i'm looking at his deposition a doctor not that she had a serious medical condition and we don't we don't know what else he said what we have a separate from the depth but the declaration goes beyond what the guy said in the deposition in some senses contradicts it in the declaration was later right that was after he  was the post i think it was the other way around actually make a well i can get that to the deposition was dated april the th or two thousand and fourteen and mr brady's declaration least the one i got here is rd of july which is a couple months later so he says in  deposition page twenty four where the other fire was with you telling her that they believe she go to the hospital yes later on did you discuss whether or not robyn winger should be taken to the hospital with any of the police officers who were present at the scene of the incident on acacia such and such a date did they have a conversation with him to take or he says and he says yes he's asked the question again he gives a yes who did you speak with officer or how many you remember officer starnes being there yes  did you tell any of the garden grove officers that you believe she should be taken to the hospital for examination by a physician answer yes it was discussed so he said all right well let me know you have all they have to do is be able to listen to the paramedics they have to listen paramedics the police officers have both said that the primary paramedics did not recommend that they take ms winger to the hospital because they believe she had a serious medical they had it that they were told that they should be the police officers admit that they were told by the paramedics that they should be taken to the hospital i don't recall your honor but i think the police officers themselves thought that if she didn't feel well she should go see a doctor and you know answer my question i don't recall your honor i just like very briefly point out  a couple of more issues the whole anchor bias issue is based on the assertion that dr jane who was who j i and the he was the treating neurologist he diagnose that there was a stroke the emergency room doctor did not testify that he was influenced by anger bias in fact he says he teaches against anchor bias and he made he always makes a conscious decision not to allow anchor to influence his opinions dr jane testified that just hypothetically yes anchor bias exists and it could result in different in different care but that in under the specific circumstances of this case he didn't see anything that the emergency room doctors did that would have been different if they're if they if if ms winger or her common law husband had not told them that was when her had been pulled over and arrested for intoxication the last thing i think i want to say is that the the same doctor the neurologist said that the signs of a stroke that ms winger exhibited on the day of the incident were so subtle that he didn't even think that the e r doctor let alone the police officers would have been in a position to recognize those subtle signs with that i will submit right thank you thank you court has actually spoken out and she in she said that there is no case law on this exact issue the supreme court of the united states actually is both spoke on this exact issue in the cruise and case and this is a quote here and they say an incompetent person is not able to make an informed and voluntary choice to exercise a right to refuse treatment so even you know even acknowledging that there is this right to refuse treatment it would not apply in this instance when there's a question about a very legitimate question about the of how it's competence to refuse that treatment and also like to address she counsel brought up this panel's discourse previous  is much higher and much more stringent than the negligent standard that we're talking about here so i don't think that any any pronouncements that court made with regard to the officers  got one question under your theory when exactly did the officers breach the duty to this wing or so they breached it st by when they were disparaging her and then and  making light of her of her symptoms to the medical and emergency personnel that were looking at her at the scene and then also when they failed to despite recognizing the symptoms and being trained to recognize a