infant child who's been identified as as i asked to preserve three minutes from argument please this case arises out of the suicide of cameron estus suicide that occurred on aug seventeenth of two thousand and nine cameron was a twenty one year old iraqi war veteran a marine it occurred after he went to the lexington v a facility and sought mental health care but he received improper negligence services while he was there and then he was turned away he was care that it violated the viet not only the v a s own policy and procedures but also violated the political state laws standards of care the issues before this court whether thirty eight u s c five eleven a which is part of the veterans judicial review act whether that precludes district courts from having jurisdiction over cameron's negligence in medical malpractise claims in order to answer that question i believe the court's going to look carefully at exactly what cameron's claims or where the state's claims are as i said he returned from iraq not long after he returned his behavior started deteriorating his family reached out to the v a try to get some help they tried to get him to go to the v a initially he initially he avoided and refused to go with it eventually he broke down and he did go to the v a he went to the police town road facility which is their mental health clinic now it's not a walking clinic and he did not have an appointment but this happens frequently the record shows that at the lexan v a people without appointments mistakenly go there approximately once a month so it's not unusual in fact it's frequent enough that the lexington v a has a policy to handle this and the policy is critical to this court's analysis the policy is the person has to be assessed whether they are in an emergency situation and if it's deemed that they are then they're either to be treated there or at least down notwithstanding not have an appointment or there to be transported by ambulance across town to the cooper dr facility where the emergency room is now this instance cameron was greeted by the intake receptionist carol mcintosh this mackintoshes test of student has stated any tape recorded statement that she spent about thirty minutes with him and she believed he was suicidal in an emergency situation she also knew that there was no one available to see him there and she said she didn't try to get any mental health professional to see him even though she believed he was in a suicidal state because she knew there was no one available now according to the v a s own policy at that point she needs to arrange for transportation by ambulance to cooper drive but she didn't do that she sent him over to cooper drive but she did not transporting by ambulance he goes to cooper dr we don't know with whom he actually  spoke at the emergency room but someone wrongfully turned him away turned him away because they said he didn't have a form called a d d two fourteen testimony is also unequivocal that he didn't need to have that form know better and used to have that form no veteran is ever to be turned away from care for not having many hard copy of that form with him so he was wrongfully turned away so his first question that i had when i was reading the pleadings about that particular argument you're making right now is i did have a little bit of trouble figuring out what the relevance was of the v a s policy with respect to these incidents and the reason that i'm asking the question and i'm i'm intentionally staying away from whether whatever happened was in connection with benefits or it wasn't in connection of benefits i don't read that into that but just on the policy issue you there is not an independent cause of action that you can maintain  under the v a after under state law for violation of a v a policy is or if that was all we had was i'm not asking you i'm sorry i did i'm asking specifically is there a cause of action about their feel you're to follow their own internal policies no there is not so then i was trying to figure out back to the bigger question what relevance does this policy at the two different locations have one way or the other another words who cares what the policy was to the issue that we have before us today i'm a little uncertain about which policy you're asking about the d d to fourteen policy or the policy about transporting a drug about basically every policy you said that they violated in another itself that does not constitute a cause of action in and of itself that would be irrelevant i ruther would be insufficient it would be insufficient to establish a cause of action i believe where it becomes relevant is we have expert testimony in the case that these policies that were him to are also consistent in fact are required under kentucky state tort law is the standard of care so these policies are consistent with the a political standard of care that we can forget that says yes yes other than i want to know  and you're saying that when a person comes then on to kentucky law in a situation that this person was in that the law would be that you would determine whether the person was an emergency situation if that person was you find some way to make sure the person got through treatment right there yes that basically would you say yes you can't send them away now i think we're becomes relevant where we start talking about the v a policy  we got this unusual situation we have two facilities they're all part of the lexington v a so we've got this standard of care judge oliver that if someone is deemed to be in an emergency situation you don't turn them away now we also have the the factual situation w have physically two facilities and on occasion at least town there's not the manpower to see them even if they aren't virgins the situation so where the policy becomes relevant is what does the v a what did the v a do in order to comply with that standard of care you gotta give and but you still got to get back to the main issue is whether this was a benefit determination or whether it was treatment and your argument is it wasn't of benefit have i'm sorry you get even richer isn't that really where you got a focus precisely that is the precise issue that i think this court has to reach whether the services benefit treatment whatever you want to call them when he went to lease town wro whether that legally is a benefit considered a benefit under section five eleven a it's not and it's not and if it's a it's not a benefit but it was treatment you don't necessarily when you're just trying to make an argument that the case should have been dismissed right that's exactly right because you could lose i mean you could win you could lose thirdly cook i'm merely saying that there is sufficient evidence in the record to create a question of fact in the case should not be dismissed on jurisdictional grounds because it got dismissed what that what the district court in air holding that this was what cameron did receive or did not receive when he went to lease to enroll holding that that was a benefit as defined in the section five eleven  a novel hold the reason i press you on the benefit issue it's because if you're not careful you'll make it sound like you think you should prevail on the case because they didn't do certain things and you don't we don't have to act required because that's a problem so you want to characterize this as something else and you say gee we should have been able to get to that something else it seems to me just logically speaking that we would have to have some assurance that you have a viable claim separate independent from the failure to provide v a benefits in order for this whole thing to make any difference so i first asked you whether you could prevail independent of the benefit theory because there was a violation of policy and you said no you can't do that so then what i think you've said and what i believe you're pleading say you point to what i think is something based upon state law either general duty to treat or something that's imposed upon hospitals right yes now here's the that's the preface to what the neuro question is i am i am at least curious how these state laws whatever they are and or the  restrictions that are imposed upon how spittles do the even apply to a government hospital if it was a state hospital i get that but does state law control what what of what a government hospital has to do when somebody shows up at the presents themselves at the door yes it does and it certainly does in this instance part of what you're touching on is the intolerable all which requires hospitals and doctors probert hospitals and doctors hospital as a large policy decision has decided we are going to provide under our humanitarian care exception we are going to provide care to those who are in an emergency situation so you're saying that if a non veteran shows up at a veteran time little clearly showing that there's an emergency the v a has taken the position that it will in fact provide care to that person regardless of their status and that because that is their position the state law a requirement of that imposes a duty to actually provide that care it applies to the hospital yes under state law certainly there's this obligation to do that the v a itself has made the policy decision that they're going to provide a burgess of care denied we answer the question a judgment  how the state law actually applies to the v a hospital i believe it does put another way there's got to be a duty yes course or things that we might do this we may do this is a be a good idea all of which seems to be true is one thing but if it's not a benefit then the the breach here has to has to flow from some duty we have to identify someplace else is of it's not i tala because that excludes v a then then what is the source of the duty and i realize that you don't want us to determine that now but i just don't see why we would send that back if the if you can't tell us what that duty is i think the source of the duty arises from the v a s policy decision that we're going to provide emergency care and you've got another step to go though and you don't then you go to federal tort claims act right yes which says if you provide services that you if you will be if you will you will be liable to extent that i mean it won't be allowable under state law right you must if you're going to agree to provide emergency care you must do so in a not negligent fashion if you're negligent then there's a lot built into the federal tort claims act and i think that's where we get the vote the a made this policy decision we're going to provide emergency care without regard to whether a veteran eligible in a row we're going to provide it once they take make that policy decision then the care has to be provided non negligent and other and in compliance with the political stuff they've agreed to do it right right in the photo or claim ak would say that they they will be liable to the same extent that's right because you think about it the other way if i forgot for say is did you bring this under the federal convoluted question i pod's i don't think i understood the question but yes it is i believe it is now and if you think of the congress private actor or under the circumstances would have  therefore the government actor similarly better talk on zach says that if if somebody is injured by a tort committed by a government employee we're going to hold them to the same standards as somebody that's a private citizen i mean generally speaking i that and if you think about it in the converse if you said there was no duty under the circumstance then the v a is decided to provide emergency care and whatever they did so if they botched it up there's no there would be no duty there would be no recovery no situation it's always been applied where there is the context of a disability claim some sort of claim for some sort of v a benefit we don't have that here this is strictly a medical malpractise claim and section five live in a has never been applied as a bar to  just a typical medical malpractise crime thank you the please the court here would occur for the united states this is a challenge to a v a benefit challenge to the failed to the failure of a v a facility to provide medical care is a benefit as the courts have repeatedly held that i'd like to point the court in particular to the ninth circuit's on both decision in the v c s case in v c s one important element of the plainest claims was that the v a was not adequately providing emergency treatment to veterans who were at an imminent risk of committing suicide and what the ninth circuit  in that case and indeed it was under sputum that case was that section five eleven quote quote section five eleven undoubtedly would deprive us of jurisdiction to consider an individual veteran's claim that the v a unreasonably delayed his mental health care that was undisputed in that case and but mental health care is a benefit yes so failure to provide it on a timely basis deals with the delivery of that benefit yes now this guy says correctly or incorrectly he was he's disclaiming reliance upon a benefit he's saying you had a state law a duty to treat him independent of v a benefits when he showed up so what's wrong with that argument your honor this he is the v a has policies and procedures with regard to the provision of emergency care at a v a facility just as much implicates v a policies and procedures with regard to the provision of benefits as anything else and again that's exacts b c s your honor that's that's the v c s decision in the in the ninth circuit and i mean really what he what they're trying to do is cameron asked us on august seventeenth two thousand and nine came to a v a facility claiming benefits as a veteran because he thought he was eligible for treatment as a veteran that is that is what this case is about he was seeking benefits as an eligible veteran and they're essentially using emergency care argument to plead around the fact this is precluded by the v g already and that's exactly what they're doing which seems to be permitted by the d c circuit decision so no i don't i think that's that's that's not correct your honor the thomas case actually thomas vs principally from the d c circuit really supports our position in this case and so in thomas what happened was the v a was evaluating whether a guy was eligible for disability treatment on the basis of his mental health disability and they diagnosed him with schizophrenia in the course of doing it they didn't tell him about it and they went on to deny him mental health care what the d c circuit said and thomas was well look to the extent you're simply challenging the fact that the v a failed to inform you about the diagnosis that would be actionable that's independent of the actual benefits decision but to the extent you were challenging the fact that they didn't provide you with mental health care that is precluded by the way and that is this case your honour's they're complaining about the fact that cared enough as was denied mental health care there let me let me let me just see if i understand logical extreme it would be any benefit that a veteran got me which going to get but there are benefits if you go there and you get benefits because you're a veteran you get treatment medical and we know that's not true you get treatment a doctor there's no malpractise that you can sue for we know you can do that but that happens every day every day so here is that the fact that the guy came in seeking treatment and he in fact was seen by someone isn't that important he saw the person up front she didn't just say go away she started to assess him she started to look at him she started to make a determination as to whether he had a problem and she determined he did have a problem so she went down the row of providing the kind of assistance that you do in a medical facility and then she went wrong after that or arguably went wrong after that because instead of then doing the next thing what do you do with this person now that i have assessed that he has a serious problem and she didn't do the next thing send him to the facility she sent him away is it isn't that the isn't that the difference between what you argue th benefit cases and this person was on the road to it being assessed though that no not at all your honor several things in response that first he had an informal conversation with a check in suicidal or in serious danger that you transport them their back i am allowance which puts you in a different position for treatment when you get there you know mackintosh the check in clerk did not perform a medical assessment of mr about she was not a healthcare for provider in any event what they're really complaining about is the fact that carole mcintosh didn't send him to a health care provider they're complaining about the fact in other words that carol mackintosh didn't provide him with  v a medical treatment that is a determination with regard to the provision of v a benefits this is not your honour's a medical malpractise case on the basis of the fact that carole mackintosh had an informal private conversation with with cameron in the us this i don't understand it is jurisdictional stage how you get to characterize this as an informal private conversation she's there she's at the desk the v a says they have to assess people when they come in but they don't put a doctor there they put this woman and will will assume for a second that she's admittedly unqualified but you're the one that chose or so then you can't  disclaim what she was doing because she was unqualified because you didn't put the qualified person there i'm not disclaiming anything your honor i'm simply pointing out that that kind of claim the policies with regard to who should be making decisions about how to provide medical care stress and drums and that person has had his or her license revoked and they're just a bad doc so they'd miss diagnose somebody at the desk as to whether they should be admitted or not that's malpractise right depending on the facts there could be a malpractise class my hypothetical could be construed could be some massage to be a malpractise claim right i mean there are facts under which you can bring a malpractise claims that's true so why can't this veteran at least get by the jurisdictional hurdle to see if he is or is not pleading a malpractise claim that's based upon state law as opposed to the v a requirement to provide benefits for you do look to the substance of the preclusion case so you look at the substance of the claim look at carol mackintosh had put cameron s this on a gurney and operated on him and had made some mistake or had let's say punched him in the nose sure yeah there might have been some liability for that but that's not what she did an ambulance which they say they would normally do to take out the facility but let him walk over there go without them so he wouldn't be liable i don't understand difference well there's a distinction your honor is between and this is this is what the video that's out between challenges to benefits the terminations and independent tort torts that are independent the benefits to terminations i mean again the fact that she may have made a mistake in not providing him benefits i mean that's  example even if it's service not not why you call it a benefit i mean once you're looking at someone and youth see they're in bad shape and you would normally then provide get an ambulance and  take them to a place and you're saying that's a benefit determination as opposed to making a mistake in terms of services that medical services that that would have been provided it's absolutely a benefits determination on may you may say so but i framework in thomas first principally from the d c circuit controls and mean that these the problem that i have with that argument is that you're saying that all treatment and let's call this treatment or failure to treat all treatment is a benefit that's is that seems to be that's the central core of your not at all not at all your money anything that happens out of the a facility is going to be barred because it's because it could be the treatment could be characterized as a benefit if the really if it really were true in this case that there was somebody had undertaken a course of treatment and violated some duty of care yes that would be potentially actionable as a claim for medical malpractise that is not what happened here your honor and again with regard to whether cameron was in an emergency say and carol mcintosh really should have dropped driven him to call and call the ambulance what really happened here they allege that he drove himself to cooper driving was turned away because he didn't have a duty to fourteen by the way square policy  procedure with regard to the provision of benefits the documentation that is required to establish eligibility to fourteen absolutely something that should go to the veterans courts he drives himself to his parents house he takes a nap his father cancels a mental health appointment he had scheduled for him that very day because he was sleeping he drives himself to his own house sees his wife his wife testifies in the deposition i didn't consider taking him to the emergency room mental health care provider and it is only after he has a violent confrontation with his wife that the tragic event that underlies this lawsuit happens and he commits suicide you are in causation it's all causation  jurisdiction no i think it illustrates that i think it illustrates that in substance this is not a claim about emergency care let's assume for a second that he shows up at this first facility he's diagnosed by a qualified person with a real diagnosis that he's that he's suicidal so that they don't have anybody there to treat him so they put him in the ambulance and they send him to the facility that actually has qualified medical people there are you saying that if this guy showed up in an ambulance with notes from this intake clerk that said he's suicidal and you need to see him they would have at that point taken him out of the ambulance taken him off the gurney said you don't have a d d forty two fourteen and s the do not know absolutely reason possible to believe right as it is a possible believe me because our policy is indeed the fact that we will provide we're not going to turn people away if you said it was a requirement that if you that you have to have your documentation  maybe i misunderstood because you do talk kind of fast and i admired how fast you get things but yes you did say that by the way it's required that you have the documentation well as a general matter your honor absolutely i mean that as a general matter the  care at v a hospitals happens to veterans who are eligible if there is true that there is a proper tried to get a d d to fourteen no your honor i have not i have and it takes months to get one so let's assume you  are returning veteran and then post traumatic stress to under syndrome you've lost your d d to fourteen which i assume you get when you leave active service so long gone i remember three years later you got the sense that you have this crisis because of what you experienced to get that form it's going to take months so to say up no form when i got a tree in the meta way said you're the first all the testimony in this case shows that returning residents who return from their deployments are routinely to fourteen when they return that's number one number two look it's absolutely true if you don't necessarily need to be to fourteen to enroll the v a is policy is to independently attempt to verify eligible service that's absolutely true what happened in this case is cameron s s applied for benefits and we tried to verify his service and we did verify that he served in the in even though he didn't submit any documentation that he was supposed to with his application we verified his service but we couldn't verify was the fact that he had we didn't have a sufficient information to think that he was served in combat so it's true that there are some circumstances where you don't need your d d to fourteen but it's also true that if if we can't verify your service yes you need to substantiate in some transported by ambulance and you are that you don't need to form because you're in better shape that they're going to go ahead and treat you that's what happened to him here no no that's not what happened i mean in exceptional cases he didn't get there no your honor but it does illustrate that what this is is a challenge to veit to the implementation of v a policies and procedures with regard to the provision of v a medical care at v a medical facilities to a veteran who who went there as a veteran saying he was eligible for care and that is really that if they were framing the complaint to say i didn't have my form didn't get treatment that seems to go to benefit so that's why i started out asking you know what difference all these policies matter so eventually he has to get to the point that there was an obligation to treat this man independent of his in title meant to vent of benefits under the laws and regulations so that's what we're really talking about so i'm just curious because your red light has now come on what is your view as to whether there is theoretically i'm not asking you to concede it but what is your view as to whether there are independent state law duties that are imposed be any such duties with regard to your butt but you didn't say there wouldn't there weren't such duties because it didn't exist you said that you weren't responsible because they were benefits right about that no i think we said both of those things i think we said both of those things below your honor and again we have to raise that in our we have to raise that alternative ground for a firm it's in our appeal but i do think we said both of those things but i mean i think the policies are relevant in this sense the core a visionary preclusion is when you are challenging policies and into the implementation of those policies with regard to benefits so the fact that the plaintiff keeps talking about the fact that that we allegedly violated our own policies only underscores that this is really a challenge for benefits determination and  just briefly your honor and i said where before every case that's relied upon by the u s is dealt with with a d j or a in the context of deciding a disability benefits or pension benefits or some that was it really had that case in my opinion it's just it's not relevant but it doesn't apply factually to this because that was a program make it was a challenge to the programs they were trying to base it on the averages of time to process and they were saying that that the deliverance of mental health care on average to all that iran's was being unreasonably delayed the processing of disability benefits claimed on average would be unreasonably delay they tried to use averages as this court addressed in beeman and saying well that doesn't get you around the b j all right because we're going to look at averages you got to look at the individual claimants so that would necessarily require review of individual claims for disability benefits again like the other cases i was mentioning they're all in the context of someone seeking disability benefits or a pension benefit or some other benefit pursuant to an established program of the v a if their position is accepted you could never have been to the federal tort claims act any medical malpractise actions you certainly could never have won the dealt with a failure to treat thomas itself says tom the quote in thomas is we reject the idea that all actions or inactions are clearly there would be potential liability under the federal tort claims act so we end where we start whether or not what cameron anesthetists received or didn't receive what or that was a benefit as benefit is to found under section five eleven and certainly claimed so i take the position that it was not what he went in for was medical treatment that had nothing to do with his application for v a benefits or v a eligibility it was completely irrelevant to any of this didn't matter if he was