[00:00:00] Speaker 02:
Good morning.

[00:00:01] Speaker 02:
My name is Chad Freeborn.

[00:00:02] Speaker 02:
May it please the court.

[00:00:03] Speaker 02:
Chad Freeborn here on behalf of the estate of Rogers.

[00:00:07] Speaker 02:
I would like to reserve five minutes for rebuttal.

[00:00:12] Speaker 02:
We've appealed this matter and we've asked this court to reverse the dismissal of our claims by the district court and remand this matter for trial.

[00:00:20] Speaker 02:
We've done so for three reasons.

[00:00:22] Speaker 02:
First, when the district court considered our summary judgment motion, because of the order in which he considered the cross motions for summary judgment, he didn't consider our motion for summary judgment.

[00:00:36] Speaker 02:
And so essentially what he did was is looked at, or what the court did was looked at the motion to strike the experts, denied the motion to strike the experts, decided NAFCARES motion for summary judgment, and then found our motion is moot.

[00:00:52] Speaker 03:
Well, if he was right on the other things, your motion is moot, yes?

[00:00:56] Speaker 02:
Well, the fact is that a number of the things in the court's order that he claims are missing, claiming that he's missing, that we didn't say that there was what the policy was, or that there wasn't testimony from Dr. Layton or Dr. Rogers as to the causation, or any of those sort of things, those are included in our motion.

[00:01:16] Speaker 02:
And that was the purpose, is to show a duty.

[00:01:20] Speaker 02:
And the court's required to consider both motions independently.

[00:01:25] Speaker 02:
And they're also required to consider all of the materials before it.

[00:01:29] Speaker 02:
And the order simply states that our motion was moot, so that there's no direction as to what materials were actually considered and whether in fact he did consider that evidence.

[00:01:42] Speaker 02:
And it's important because it leads me to my second point, which is the court misapplied the summary judgment standard when the court weighed the evidence.

[00:01:53] Speaker 02:
You can see in the court's decision is that on page 3,

[00:01:58] Speaker 02:
In the court's orders, you know from pages 3 to 30 in the record But on on page 3 of the order the court starts to recitate the facts and as he's going through the facts

[00:02:10] Speaker 02:
The court just talks about all of the number of issues that are in dispute.

[00:02:14] Speaker 02:
And they're talking about the fact whether the patient was properly medicated, whether there was a therapeutic dose, even states that all the experts agreed that a non-therapeutic dose was not provided, that the anti-psychotic medicine wasn't being applied.

[00:02:32] Speaker 02:
There was a dispute as to whether the screenings were done properly.

[00:02:36] Speaker 02:
And so all of these facts are in dispute.

[00:02:39] Speaker 02:
And then all of a sudden, as the court goes through the analysis of the claims, the court then just decides to take a side.

[00:02:47] Speaker 04:
And here's my problem with where I think you're going.

[00:02:51] Speaker 04:
And that is, with respect to 1983, you're not suing the individuals.

[00:02:55] Speaker 04:
You're suing the corporation.

[00:02:57] Speaker 04:
So you've got to show as if the corporation were a county under our case law.

[00:03:02] Speaker 04:
So you've got to show a policy.

[00:03:04] Speaker 04:
not just that there was negligence in the treating of this individual plaintiff.

[00:03:08] Speaker 04:
And the same is true with respect to your Washington state law claim for corporate negligence.

[00:03:16] Speaker 04:
The only claim for which that may or may not be true is wrongful death.

[00:03:20] Speaker 04:
So what do you have to show to show wrongful death?

[00:03:23] Speaker 04:
Is it enough to show that there would have been individual liability had an individual been sued?

[00:03:28] Speaker 04:
Is this a respondeat superior claim?

[00:03:31] Speaker 04:
Or does it follow the same analysis basically of both the 1983 and corporate liability claim where you've got to show some wrongdoing or policy by the corporation?

[00:03:41] Speaker 04:
Was that too long a question?

[00:03:42] Speaker 02:
No, that's fine.

[00:03:45] Speaker 02:
In response to that question, in the record at page 518, there's a deposition testimony of Amanda Spade.

[00:03:52] Speaker 02:
Amanda Spade was a nurse at NAFCAR.

[00:03:54] Speaker 02:
In looking at this, the court was talking about this agreement, this contract analysis, and saying we were talking about that this is a contract and a contract can't determine liability.

[00:04:06] Speaker 02:
But the overall policy of NAFCOR was based upon an agreement that it had with Spokane County.

[00:04:12] Speaker 02:
They're saying, pursuant to their agreement, that they didn't have a duty to treat mentally ill inmates.

[00:04:18] Speaker 02:
And so that goes to the question.

[00:04:20] Speaker 03:
I don't think they're saying that.

[00:04:22] Speaker 03:
They have different people treating different aspects of it.

[00:04:28] Speaker 03:
What's wrong with that?

[00:04:29] Speaker 02:
Well, because the Spokane County employees are not qualified to treat a person with schizophrenia.

[00:04:35] Speaker 02:
As in Dr. Leighton's opinion, schizophrenia is different.

[00:04:39] Speaker 02:
It requires medication.

[00:04:41] Speaker 02:
It requires counseling.

[00:04:42] Speaker 02:
Well, the medication side of things only the NAFCARE employees could provide.

[00:04:46] Speaker 02:
And that's why NAFCARE employed a psychiatrist.

[00:04:48] Speaker 02:
That's why they employed a licensed psychiatric nurse.

[00:04:52] Speaker 04:
But NAFCARE is providing medication.

[00:04:54] Speaker 04:
It may not have been sufficient.

[00:04:55] Speaker 04:
It may not have been perfectly appropriate.

[00:04:57] Speaker 04:
But it wasn't as though they said, we're not treating this guy.

[00:04:59] Speaker 02:
Well, they did, because in Ms.

[00:05:03] Speaker 02:
Spade's deposition, I was asked why she didn't complete any of the forms or why NAFTA employees didn't complete any of the intake forms.

[00:05:10] Speaker 03:
And those forms asked- I thought the intake form was ultimately completed.

[00:05:14] Speaker 02:
That's not correct.

[00:05:16] Speaker 03:
That's not correct?

[00:05:16] Speaker 02:
That's not correct.

[00:05:17] Speaker 02:
And if you look at the intake forms, and there's all the materials at page 1440 to 1517, if you go through all of those, when they're done, and this is one of the biggest problems with the court's ruling, is that they get to a point within those forms and then ask them about to make a referral.

[00:05:41] Speaker 02:
to a psychiatrist or somewhere other than what's been going on.

[00:05:46] Speaker 02:
Because he's had three suicide attempts, the medication doesn't seem to be working.

[00:05:51] Speaker 02:
And when Ms.

[00:05:53] Speaker 02:
Spade was deposed, we don't do that.

[00:05:56] Speaker 02:
We're not allowed to make referrals.

[00:05:58] Speaker 02:
We're not allowed to do those sort of things.

[00:06:00] Speaker 02:
And so when they're talking about integrating the system with the Spokane County jail,

[00:06:05] Speaker 02:
and sharing a record system, when those records aren't complete, when they're not filling out those intake forms, so when they're not filling out all of those things, then basically the records that the Spokane County counselors are relying upon are incomplete records.

[00:06:20] Speaker 03:
And if they're saying, well, it's- Well, I thought that initially they weren't able to fill out the form because Mr. Rogers refused to cooperate.

[00:06:33] Speaker 03:
but that the following morning a second nurse was able to complete the form.

[00:06:40] Speaker 03:
And I think it's at volume five of the appendix at 1085 to 1104.

[00:06:48] Speaker 03:
Is that not correct?

[00:06:49] Speaker 02:
That's not correct.

[00:06:50] Speaker 02:
If the court goes back and reviews those materials, there was an initial nurse, I believe her name was Tabiska Bruce.

[00:06:56] Speaker 02:
She did the initial intake.

[00:06:58] Speaker 02:
And when she tried to complete that form, she stops.

[00:07:02] Speaker 02:
And then the next nurse, whose name is escaping me at the time, does- And she stops.

[00:07:07] Speaker 03:
Are you disputing that she stopped because he refused to cooperate?

[00:07:11] Speaker 02:
Well, I mean, maybe at that time.

[00:07:13] Speaker 02:
But I mean, if you go further on, on December 20th- So where's the violation of a policy?

[00:07:18] Speaker 02:
Well, I mean, on December 22, Judith Randall, the psychiatric nurse, does an evaluation of Mr. Rogers.

[00:07:24] Speaker 02:
And in that evaluation, all of the signs point to the fact that he's having hallucinations, is suicidal, and she fills out the same form.

[00:07:32] Speaker 02:
And in that same form, that psychiatric nurse does not make a referral for treatment for Mr. Rogers.

[00:07:39] Speaker 02:
And so that form's not even complete.

[00:07:41] Speaker 02:
And if you go through from 14-14, or sorry, 14-40 to 15-17 in the record, and if you look at from the time he was booked all the way through the 37 days that he was there, every different evaluation that had occurred, none of those forms are completed with regard to mental health.

[00:07:58] Speaker 04:
And how does that turn into a bad policy?

[00:08:01] Speaker 04:
rather than bad practices by the individuals.

[00:08:05] Speaker 04:
Assuming, I'll go with you for the moment, that these are bad practices by the individual nurses.

[00:08:10] Speaker 04:
Why is that a bad policy?

[00:08:12] Speaker 02:
Because it's not the individual nurses who are choosing to do this.

[00:08:16] Speaker 02:
NAFCAR has directed its employees not to treat mentally ill inmates.

[00:08:21] Speaker 02:
They're basically saying, we have an agreement, and based upon our agreement... What are the records you have?

[00:08:26] Speaker 04:
NAFCAR says to its employees, we do not treat mental illness.

[00:08:30] Speaker 02:
On 518 of the record, the deposition of Amanda Spade.

[00:08:35] Speaker 02:
Ms.

[00:08:35] Speaker 02:
Spade talks about the fact that I asked her in her deposition, why didn't you follow up to see if medication was working?

[00:08:44] Speaker 02:
That's not my job.

[00:08:45] Speaker 02:
I don't do that.

[00:08:46] Speaker 02:
Did you review a history of Mr. Rogers' prior schizophrenia and suicidal behavior?

[00:08:51] Speaker 02:
No, why not?

[00:08:52] Speaker 02:
I don't do that because we don't treat mental health.

[00:08:55] Speaker 02:
Why didn't you make a referral?

[00:08:56] Speaker 02:
I don't have the ability to do that because we don't treat mental health.

[00:09:01] Speaker 02:
That's coming from NAF care.

[00:09:03] Speaker 02:
That's not misfade.

[00:09:04] Speaker 03:
So, as I understood, the policy is

[00:09:07] Speaker 03:
The nurses couldn't treat that, but they were required to refer the inmate to the county's mental health practitioner, and then that person in turn could refer them to a psychiatrist.

[00:09:28] Speaker 03:
That's why NAFA had psychiatrists.

[00:09:31] Speaker 02:
This is the part about that, is that you're having a nurse, and under Washington law, and this is why we, in our summary judgment motion, put the whack and the standards for nurses in the state of Washington.

[00:09:43] Speaker 02:
They cannot delegate duties to people who are unqualified to perform the task.

[00:09:48] Speaker 02:
If Nurse Randall, who's a NAFCARE employee, a licensed psychiatric nurse, finds out that Mr. Rogers needs a referral to a psychiatrist or needs some other sort of different treatment, you're having a psychiatric nurse make a referral to a social worker.

[00:10:04] Speaker 02:
So a social worker can make a determination as to medical care of whether or not they need to be referred back to NAFCARE's psychiatrist.

[00:10:11] Speaker 02:
This is what I'm talking about.

[00:10:13] Speaker 02:
NAAFCAIR simply just directed its employees, don't treat mentally ill patients.

[00:10:19] Speaker 02:
Let that be the county's issue.

[00:10:21] Speaker 02:
But the fact of the matter is, is that Mr. Rogers, for instance, with his schizophrenia, required medication.

[00:10:28] Speaker 02:
No Spokane employee could prescribe, administer, or monitor his medication.

[00:10:33] Speaker 02:
That was all NAAFCAIR.

[00:10:34] Speaker 03:
Let's give him medication.

[00:10:36] Speaker 02:
Excuse me.

[00:10:37] Speaker 02:
I'm sorry.

[00:10:37] Speaker 01:
It wasn't he given medication He was given medication the incorrect dose and no one followed up to see whether or not it worked and so giving someone I guess one of the challenges here is in order to I think NAFTA care is saying that if it if it's not their entire duty if that's not their entire responsibility the county shares responsibility for it and

[00:10:58] Speaker 01:
What do you have to show to establish NAFCARES violation of the Constitution, deliberate indifference?

[00:11:09] Speaker 01:
Does it violate the Constitution for them to proceed with an understanding that that's someone else's job?

[00:11:15] Speaker 01:
Because those other people aren't before us.

[00:11:17] Speaker 02:
It would be, and I think about it this way, is that, and this is why we got into the contract, and I think the court kind of went away from that, but what it comes down to is,

[00:11:31] Speaker 02:
The nurses who are practicing in the Spokane County Jail can't operate in this manner.

[00:11:37] Speaker 02:
If they're treating somebody and they see the signs of a need for a referral, and you see this with Mr. Rogers, they have to make a referral.

[00:11:46] Speaker 02:
They have to provide treatment.

[00:11:48] Speaker 02:
They can't just throw up their hands and say, we're not going to do this.

[00:11:50] Speaker 02:
because this is somebody else's responsibility.

[00:11:53] Speaker 02:
And this is why we cited, you know, to the whack in the RCWs about the standard of care.

[00:11:57] Speaker 01:
Do you establish, do you think you've established a dispute as to NAFCARES awareness that the rest of the system can't handle this?

[00:12:06] Speaker 01:
Wouldn't you need to?

[00:12:07] Speaker 02:
Well, it would be, and that's the thing about it.

[00:12:12] Speaker 02:
It's interesting because NAFCAIR's entire defense in this case is we had an agreement with Spokane County that we didn't have to do this.

[00:12:19] Speaker 02:
So therefore, when we have a written policy, NAFCAIR's written policy, for instance, says that every time they fill out all these forms that we discussed at the beginning, that they had to check all of the boxes no matter what.

[00:12:30] Speaker 02:
And if any of those boxes required a check mark, that they had to make the necessary referrals.

[00:12:36] Speaker 02:
None of those boxes are checked.

[00:12:38] Speaker 02:
And so that establishes the unwritten practice and custom of the policy of NAFCARE not to treat the mentally ill patients.

[00:12:47] Speaker 02:
And that's what the court said.

[00:12:50] Speaker 02:
Well, you didn't show that there was a written policy.

[00:12:52] Speaker 02:
You didn't show that there was any of those sort of things.

[00:12:54] Speaker 02:
And the fact of the matter is that we did show that because the paperwork speaks for itself.

[00:13:01] Speaker 02:
They didn't even follow their own policy.

[00:13:03] Speaker 02:
And according to Nurse Spade, it was at the direction of the employer.

[00:13:07] Speaker 01:
Okay, well, thank you save a couple minutes of your time.

[00:13:09] Speaker 01:
Thank you Mr. Ballard

[00:13:26] Speaker 00:
Thank you for the court's indulgence.

[00:13:28] Speaker 00:
Good morning.

[00:13:28] Speaker 00:
May it please the court, Jonathan Ballard, on behalf of Appellee NAFCARE Inc.

[00:13:33] Speaker 00:
I present today to request that this court affirm the trial court's orders granting summary judgment where appellant's claims fail as a matter of law.

[00:13:44] Speaker 00:
Appellant's paramount argument asserts that the trial court failed to consider its own motion for summary judgment that was submitted at the same time as NAFCARE's.

[00:13:55] Speaker 00:
I'd like to point out, however, that the district court's order expressly indicated that it reviewed all facts and evidence in support of the five motions then pending before it.

[00:14:04] Speaker 00:
That same order also expressly stated that the court was well informed.

[00:14:10] Speaker 00:
I'd also like to point out to the court that appellant did not submit any facts or evidence in support of its response to NAFCARES motions for summary judgment that was also not submitted in its own motion for summary judgment.

[00:14:24] Speaker 00:
In fact, it incorporated by reference its arguments from its motions for summary judgment in responding to NAFCARES motions for summary judgment.

[00:14:33] Speaker 00:
Furthermore, appellant's motion for summary judgment only address elements of duty and breach related to statues on nursing conduct.

[00:14:42] Speaker 00:
The district court did not commit error in rendering that motion moot when it found that appellant failed to establish proximate causation.

[00:14:50] Speaker 00:
Attorney Nexus, substance issues on appeal.

[00:14:53] Speaker 00:
As to Monell, this court is well aware that there must be an underlying constitutional violation for liability to attach to NAFCA as an entity itself.

[00:15:04] Speaker 00:
Without that, the claim fails.

[00:15:06] Speaker 04:
Well, you need some sort of custom policy practice, deliberate indifference, and so on.

[00:15:10] Speaker 04:
Yeah, so we just heard that at ER 518 and the record, there's a statement by a nurse who said, well, this wasn't, at least as it was just described to us, as I heard it, this is our policy.

[00:15:24] Speaker 04:
We don't do this.

[00:15:25] Speaker 04:
How do you respond?

[00:15:26] Speaker 00:
Thank you, Your Honor.

[00:15:27] Speaker 00:
I'd be happy to respond to that.

[00:15:28] Speaker 00:
Appellant takes testimony from some NAFTA care nurses out of context to suggest that NAFTA care did not treat mental health or relied on unqualified nurses or Spokane County's mental health professionals for medication management.

[00:15:44] Speaker 00:
The argument ignores that the medical nurses are not qualified to assess mental health patients, and that's exactly why that scope was appropriately provided by Spokane County's mental health professionals and its mental health case manager.

[00:16:01] Speaker 00:
Furthermore, mental health professionals and medical nurses are not qualified to manage medications.

[00:16:10] Speaker 00:
Medical nurses in a jail are responsible for medication administration, which is known as MedPass in a jail.

[00:16:17] Speaker 00:
That's simply to pass out the medications and ensure that they're taken.

[00:16:22] Speaker 00:
It was NAFCARES nurse, a psychiatric nurse practitioner, and psychiatrists who were responsible for medication management for Mr. Rogers, and that's exactly what they did here.

[00:16:33] Speaker 00:
I know that appellant also cites to the testimony to indicate that the failure to provide mental health treatment was done at NAFCAIR's direction, but appellant cites to no evidence whatsoever that there was a NAFCAIR person with authority on policy making that directed anyone to follow this claimed unwritten policy to not provide treatment at the jail.

[00:16:59] Speaker 00:
There's no indication of who it was, how it was communicated, when it was communicated.

[00:17:04] Speaker 00:
It's simply unsubstantiated by the record.

[00:17:09] Speaker 00:
I'd like to continue with my assertion that there must be an underlying constitutional violation in support of Monell.

[00:17:18] Speaker 00:
I think that without an underlying constitutional violation, we don't even get to policy.

[00:17:24] Speaker 00:
And here, at best, to show a constitutional violation, appellant argues allegations where certain employees did not meet the standard of care or did not follow codes of conduct for nursing practice.

[00:17:38] Speaker 00:
None of these can be a basis for a constitutional violation.

[00:17:41] Speaker 00:
This court knows that the conduct must rise to a level of deliberate indifference, which is a high standard of fault, requiring an intentional decision that put Mr. Rogers at substantial risk of harm, and that was objectively unreasonable under the circumstances.

[00:17:56] Speaker 04:
That doesn't save you on the Washington claim for corporate negligence, though.

[00:18:00] Speaker 04:
There's a slightly different standard for that, is that right?

[00:18:03] Speaker 00:
Yes, there certainly is.

[00:18:04] Speaker 00:
I can address the corporate negligence claim very easily.

[00:18:10] Speaker 00:
In Washington, expert testimony is required to establish the corporate standard of care for a medical contractor like NAFCA, providing services in jails.

[00:18:23] Speaker 00:
Appellant offered none of that testimony, and he also offered no expert testimony to show that NAFCA as an entity breached that standard of care

[00:18:33] Speaker 00:
or that NAFCARES conduct, again, as an entity, caused the harm in question.

[00:18:39] Speaker 00:
Appellate argues that NAFCARES owed an independent duty to supervise its employees, but their experts offered no opinions whatsoever on supervision or even training of the employees.

[00:18:51] Speaker 00:
Both of the experts also acknowledge that they didn't even review any of NAFCARES policies or procedures in this case.

[00:18:59] Speaker 00:
Appellant attempts to use expert testimony regarding alleged medical negligence of NAFTA care employees as evidence of corporate negligence.

[00:19:07] Speaker 00:
But as the district court noted, that is not the relevant inquiry on a corporate negligence claim.

[00:19:13] Speaker 00:
In Washington, a corporation cannot be liable for ordinary medical negligence where a corporation is legally precluded from practicing medicine.

[00:19:25] Speaker 00:
I'd like to turn next to the issues surrounding a policy that have been put forth by appellant.

[00:19:33] Speaker 00:
As indicated, even if appellant could somehow show a constitutional violation, they failed to show that there was an unwritten policy by NAFTA care at the Spokane County Jail to withhold mental health treatment.

[00:19:47] Speaker 01:
Mr. Ballard, what else would a plaintiff have to show to establish that you have multiple discussions of potential carelessness in the administration of it?

[00:19:59] Speaker 01:
Your friend points to testimony in the record.

[00:20:02] Speaker 01:
What's missing there to establish the violation, the policy?

[00:20:06] Speaker 00:
Well, like I said, it has to be something more than mere negligence.

[00:20:12] Speaker 00:
It has to rise to a level of deliberate indifference.

[00:20:15] Speaker 00:
And none of the assertions claimed by Appellant rise to that level.

[00:20:19] Speaker 01:
Why couldn't a plaintiff establish deliberate indifference through pervasive negligence of individual employees?

[00:20:29] Speaker 00:
I think that that is possible.

[00:20:31] Speaker 00:
But in this case, Appellant's claims are controverted by the evidence.

[00:20:34] Speaker 01:
Okay.

[00:20:35] Speaker 01:
And so what, what is that?

[00:20:36] Speaker 01:
What, what is missing from that claim?

[00:20:38] Speaker 00:
Certainly.

[00:20:39] Speaker 00:
Well, what, um, appellant points to is that, um, NAFCAR had a policy not to treat mental health at the jail, right?

[00:20:48] Speaker 00:
Um, this argument completely ignores that Spokane County had its own mental health professionals and a mental health manager staffed at the jail who worked in conjunction with NAFCAR to treat mental health conditions.

[00:21:01] Speaker 00:
Spokane County, like NAFCAR, even had its own separate policies and procedures for its staff.

[00:21:07] Speaker 00:
NAFCAR's mental health treatment at the jail included screening for mental health conditions at booking and having a psychiatric nurse practitioner and a psychiatrist to order and manage mental health medications.

[00:21:21] Speaker 00:
Appellant argues that this intake screening wasn't done as an example of some conduct to describe either a potential constitutional violation or some sort of policy.

[00:21:33] Speaker 00:
But like I said, it's controverted by the evidence.

[00:21:35] Speaker 00:
Mr. Rogers was initially uncooperative, you're correct, and he was placed on suicide watch because he made some comments to the police that were concerning.

[00:21:46] Speaker 00:
The very next morning, Mr. Rogers was screened

[00:21:50] Speaker 00:
And he was referred to Spokane County's mental health professional who did a full mental health evaluation at that time.

[00:21:59] Speaker 00:
At that same time, these things were going on.

[00:22:02] Speaker 00:
NAFCAR ordered Mr. Rogers outside medical records to confirm the medications that he was on.

[00:22:09] Speaker 00:
And the very next day, his anti-psychotic medications were ordered and given to him.

[00:22:15] Speaker 00:
None of this is evidence of, I would suggest, not even medical negligence and certainly doesn't rise to the level of a constitutional violation.

[00:22:29] Speaker 00:
I'd also like to point out as well that appellant is only able to point to Mr. Rogers' isolated experience as evidence of policy.

[00:22:39] Speaker 00:
But based on long-standing Monell jurisprudence, isolated experiences cannot serve as a basis for liability.

[00:22:47] Speaker 04:
What's the standard?

[00:22:49] Speaker 04:
You keep focusing on 1983, and it seems to me that's your strongest defense.

[00:22:54] Speaker 04:
What do you do with the wrongful death?

[00:22:56] Speaker 04:
What's the standard that NAFTA has to satisfy on the wrongful death claim under Washington law?

[00:23:03] Speaker 00:
Well, it's appellant's burden to establish that, but... What is the burden?

[00:23:08] Speaker 00:
I mean, what's the standard?

[00:23:09] Speaker 00:
Sure.

[00:23:09] Speaker 00:
Appellant expressly abandoned any respondent superior claims against NAFCARE, and because of that, the wrongful death claim does not survive.

[00:23:22] Speaker 00:
Furthermore, those... Wait a minute.

[00:23:25] Speaker 04:
You went over that a little too quickly for me.

[00:23:26] Speaker 04:
Sure.

[00:23:27] Speaker 04:
If, in your view, there's an abandonment of the wrongful death standard,

[00:23:33] Speaker 04:
If it had not been abandoned is the wrongful death standard respond to superior?

[00:23:38] Speaker 00:
Well, it's certainly under a wrongful death claim in the state of Washington

[00:23:43] Speaker 00:
the elements of negligence would apply, right?

[00:23:47] Speaker 00:
And because here, it's medical treatment that is at issue, it would be the statutory scheme that governs medical negligence for the state.

[00:23:57] Speaker 00:
And here, Respondent Superior, as to NAFCA, may attach, but like I said, Respondent Superior claims were expressly abandoned by appellant in this case.

[00:24:08] Speaker 04:
Now, maybe you don't have it right in front of you.

[00:24:11] Speaker 04:
Can you tell me where they were expressly abandoned?

[00:24:15] Speaker 04:
I mean, you can abandon by never mentioning it, which means I got to read the whole record.

[00:24:18] Speaker 04:
But you just said they were expressly abandoned.

[00:24:21] Speaker 00:
Sure.

[00:24:21] Speaker 00:
They were in the pleadings on the briefing on the motions for summary judgment.

[00:24:26] Speaker 00:
Appellant expressly abandoned the respondent's superior claims.

[00:24:30] Speaker 00:
I don't have that pin sight in front of me at the moment, but I can certainly provide that to the court.

[00:24:37] Speaker 04:
If we ask, okay, yeah.

[00:24:41] Speaker 00:
Thank you, Your Honor.

[00:24:44] Speaker 00:
With the time that I have remaining, I wanted to continue to address this policy issue because I think it's important.

[00:24:53] Speaker 00:
As indicated, isolated experiences cannot serve as a basis for liability.

[00:24:58] Speaker 00:
There must be an indication of an unconstitutional policy of sufficient duration and frequency so that it was well-settled practice.

[00:25:07] Speaker 00:
Appellant does argue in his briefing, although not mentioned today, that a single instance of a constitutional violation is sufficient to show policy.

[00:25:17] Speaker 00:
However, this is only applied in rare circumstances where fault and causation are obvious.

[00:25:23] Speaker 00:
I would assert here that there is no obvious fault in causation.

[00:25:27] Speaker 00:
And as indicated earlier, Appellant's contention that NAFCARE directed its employees to withhold mental health treatment is unsubstantiated in the record.

[00:25:38] Speaker 03:
Appellant in their briefing also points- As I understand the policy, but I want to make sure I have this right, so the nurses

[00:25:52] Speaker 03:
were directed, rather than treating or attempting to treat mental health problems, to refer those inmates to a mental health professional.

[00:26:05] Speaker 03:
And the mental health professional, in turn, could refer them to a psychiatrist.

[00:26:14] Speaker 03:
And a psychiatrist would be the one who would determine what medication and in what amounts could be given rather than leaving it to someone who is not a medical doctor.

[00:26:26] Speaker 03:
Do I have that as the basic policy?

[00:26:30] Speaker 00:
Well, I think what the facts show here, Your Honor, is that medical nurses are not qualified to assess mental health conditions.

[00:26:39] Speaker 00:
And that is exactly why they were referred to Spokane County's mental health professionals.

[00:26:44] Speaker 00:
And the mental health professionals themselves also aren't qualified to manage medications.

[00:26:49] Speaker 00:
And that's exactly why.

[00:26:52] Speaker 03:
So that policy on its face, I want to hear from your adversary on rebuttal, but sounds like a perfectly sensible policy.

[00:27:01] Speaker 03:
And then far from a unconstitutional one, not even a wrongful one.

[00:27:07] Speaker 03:
And then, as I understand, that was what was carried out in this case.

[00:27:13] Speaker 03:
Am I wrong on that?

[00:27:14] Speaker 00:
No, I would tend to agree with you.

[00:27:18] Speaker 00:
In fact, the psychiatric nurse practitioner is the one that has the prescribing authority, and that is exactly why she was involved in ordering the medications and monitoring those medications.

[00:27:31] Speaker 03:
After the doctors determine what medication and in what amounts, which only a doctor presumably is fit to determine, then the nurse practitioner administers it.

[00:27:43] Speaker 00:
Well, the nurse practitioner has prescribing authority.

[00:27:45] Speaker 00:
And here, I think it's also important to point out as well, that that nurse practitioner consulted with NAFCARES staff psychiatrists on at least two occasions in the medication regimen that should be provided for Mr. Rogers.

[00:28:03] Speaker 03:
And in addition, towards the end, he was repeatedly put under suicide watch.

[00:28:09] Speaker 00:
Exactly.

[00:28:11] Speaker 00:
I'd like to, with the time, the very brief time that I have left, I'd like to speak very quickly about Dawson, which is a case that Pellant points out to show historical evidence of a constitutional violation.

[00:28:26] Speaker 00:
That case is highly distinguished, involved evidence that an intake screening was not done.

[00:28:32] Speaker 00:
Here, the overwhelming evidence shows that that intake screen was, in fact, done.

[00:28:36] Speaker 00:
Thank you, Your Honors.

[00:28:37] Speaker 00:
I request that the lower court's decisions on summary judgment are affirmed.

[00:28:43] Speaker 01:
Thank you, Mr. Ballard.

[00:28:46] Speaker 01:
Mr. Freeborn?

[00:28:50] Speaker 02:
Thank you.

[00:28:51] Speaker 02:
As counsel just mentioned, the Dawson case.

[00:28:55] Speaker 02:
Very similar to this, Western District of Washington case.

[00:28:58] Speaker 02:
NAFCAR was the defendant.

[00:29:00] Speaker 02:
Ironically, on January 3rd of 2018, which is the day that Mr. Rogers was found, is the same day that the individual in the Dawson case was found dead in a jail.

[00:29:12] Speaker 02:
In that case, and the same issue, failure to screen.

[00:29:17] Speaker 02:
And so if the court goes back and examines the record, like I invited the court to, and from pages 1440 to 1517, and you look at the substantial amount of records and intakes and different things that were done, and if you look at the holding in the Dawson case, which basically found that there's a question of fact as to whether or not the failure to screen would be sufficient to a failure to train.

[00:29:42] Speaker 04:
I understand that you said the forms weren't filled out.

[00:29:46] Speaker 04:
But there was screening.

[00:29:47] Speaker 04:
I gather the evidence tells us that, at least as the first form, it was hard to fill out the form because his mental illness was preventing that.

[00:29:58] Speaker 04:
But it's very clear that everybody understood that he was schizophrenic, that he did need medication.

[00:30:04] Speaker 04:
He was medicated.

[00:30:05] Speaker 04:
I mean, there's a dispute as to whether he was properly medicated, but they understood the basic problem.

[00:30:10] Speaker 04:
So why is this a failure to screen case?

[00:30:13] Speaker 02:
Because if, if NAFCARE is, is intentionally not filling out the, the, the records because of- As the first nurse, that's not true.

[00:30:21] Speaker 04:
She was, she couldn't do it because he was having difficulties because of his schizophrenia.

[00:30:26] Speaker 02:
But that's one small sliver of a multiple screenings that took place over the 37 days he was there.

[00:30:34] Speaker 02:
If they're not completing the records and entering into a system that's supposed to be integrated for other counselors to rely on,

[00:30:40] Speaker 02:
then how can those counselors treat when they don't have the necessary information?

[00:30:45] Speaker 02:
And so basically that policy, that goes to... They did have information.

[00:30:50] Speaker 04:
They knew he was schizophrenic.

[00:30:52] Speaker 04:
They knew or at least suspected he was suicidal.

[00:30:54] Speaker 04:
There's some dispute as to whether or not it was suicide attempt or autoerotic asphyxiation.

[00:31:00] Speaker 04:
His mother thought it was the latter, but clearly they had some reason to believe that he was suicidal.

[00:31:07] Speaker 04:
I mean, what information do you think they should have had that they did not?

[00:31:11] Speaker 02:
I'm beyond time, may I respond?

[00:31:14] Speaker 02:
My response to that is simply this, is that he attempted to commit suicide three times during the time he was there.

[00:31:21] Speaker 02:
The NAFTA employees kept coming to the same conclusion, which would be, he never saw Dr. Peterson, who's the actual psychiatrist.

[00:31:30] Speaker 02:
He never, as Judge Ravkoff was just talking about, never

[00:31:37] Speaker 02:
made it around that policy seems good in practice to have it here here refer it there and then make it come back.

[00:31:44] Speaker 02:
But the fact of the matter is is these nurses kept not making the necessary referral directly up to the chain to the only person that could have helped him was the only person who never saw him and that was based upon their policy not to do so.

[00:31:58] Speaker 04:
I know you're over time, but if I could ask one question.

[00:32:01] Speaker 04:
It was just represented to us by your adversary that you abandoned, with respect to wrongful death, any argument that respondent superior was the standard.

[00:32:10] Speaker 04:
Is that true?

[00:32:12] Speaker 02:
I don't recall doing that.

[00:32:14] Speaker 04:
The only thing that I... Don't make that argument much in your briefs to us, I have to say.

[00:32:18] Speaker 02:
Right.

[00:32:19] Speaker 02:
I mean, I think the main focus of the brief was on the fact that for a Monell claim, you can't have Respondent Superior be the basis for that.

[00:32:28] Speaker 02:
And I think that that was the focus of that.

[00:32:29] Speaker 04:
But I'm not talking about the Monell claim.

[00:32:30] Speaker 04:
I'm talking about the wrongful death claim.

[00:32:32] Speaker 02:
Right.

[00:32:32] Speaker 02:
And I think that that's what I'm saying, is that to the extent that there was talking about the Respondent Superior claim, I was, I think, avoiding that for the purposes of the Monell claim.

[00:32:42] Speaker 02:
But I don't recall expressly getting rid of that.

[00:32:46] Speaker 02:
Thank you.

[00:32:47] Speaker 02:
Thank you.

[00:32:47] Speaker 01:
Thank you, Mr. Freeborn.

[00:32:50] Speaker 02:
All right, the case is submitted.