[00:00:00] Speaker 04:
Please get ready for our next case, 25-1354, estate of Charles Anthony Furtado versus Smith.

[00:00:14] Speaker 00:
Good morning.

[00:00:14] Speaker 00:
May it please the court.

[00:00:16] Speaker 00:
My name is Liana Orshan, and along with my colleague David Lane at council table, we represent the plaintiff appellant, the state of Charles Hurtado, and our client, Bernie Hurtado, who is the personal representative of the state, is also here in the courtroom along with other members of the Hurtado family.

[00:00:35] Speaker 04:
So to understand why the district... Just to be clear, this is not all family register.

[00:00:39] Speaker 00:
This is not, as far as I know, this is not the whole family.

[00:00:42] Speaker 00:
But luckily we do have some family members in support.

[00:00:47] Speaker 03:
Speak into the microphone.

[00:00:48] Speaker 00:
Yes, is that better?

[00:00:49] Speaker 03:
Twist it up a little.

[00:00:51] Speaker 03:
There you go.

[00:00:52] Speaker 00:
How's that?

[00:00:53] Speaker 00:
Good.

[00:00:54] Speaker 00:
All right.

[00:00:54] Speaker 00:
So to understand why the district court erred in granting summary judgment to Dr. Smith in this case,

[00:01:00] Speaker 00:
in which he failed to provide the necessary treatment for Mr. Hurtado's abscess leading to Mr. Hurtado's death.

[00:01:07] Speaker 00:
It's important to break down the claim of deliberate indifference into its component parts.

[00:01:12] Speaker 03:
What is the difference between deliberate indifference and negligence?

[00:01:18] Speaker 00:
It is the state of mind.

[00:01:20] Speaker 03:
It's what?

[00:01:21] Speaker 03:
I'm sorry?

[00:01:22] Speaker 00:
It is the state of mind.

[00:01:24] Speaker 00:
So inadequate treatment is the basis for both a negligence claim and a deliberate indifference claim.

[00:01:32] Speaker 00:
In negligence, the state of mind requirement is negligence.

[00:01:37] Speaker 00:
In deliberate indifference, the state of mind requirement is knowledge, or at least recklessness.

[00:01:44] Speaker 00:
So the difference is that for negligence, the doctor might not necessarily know

[00:01:53] Speaker 00:
or recklessly disregard that the wrong treatment is being provided, whereas in deliberate indifference, the doctor knows at the time that the inadequate care is provided that this is not the appropriate and necessary treatment to be provided.

[00:02:10] Speaker 03:
So no matter how hard the person works to cure whatever the ill is, if he's negligent, that's also deliberate indifference?

[00:02:19] Speaker 03:
Is that what you're saying?

[00:02:20] Speaker 00:
I'm saying that if someone is negligent, they're not necessarily aware that they are providing the incorrect care.

[00:02:28] Speaker 00:
Whereas in deliberate indifference, we must prove that the doctor knew at the time he was providing the incorrect care that it was the incorrect care.

[00:02:39] Speaker 00:
And that is exactly what we have in this case with Dr. Smith conceding that he knows that the treatment for an abscess

[00:02:48] Speaker 00:
is not the treatment that he provided.

[00:02:50] Speaker 00:
For an abscess, it needs to be completely drained, and discharge on oral antibiotics is not appropriate care.

[00:03:00] Speaker 02:
Isn't that the whole point, though, that Dr. Smith thought it might be just a large mass, that it wasn't necessarily a walled-off abscess of pus?

[00:03:10] Speaker 02:
And so he did the needle aspiration.

[00:03:13] Speaker 02:
as a doctor might do, to find out whether or not his inclination was correct or whether or not an IND was required.

[00:03:21] Speaker 00:
That is what Dr. Smith testified in this case for the first time.

[00:03:26] Speaker 00:
He had made a statement that he did not diagnose an abscess.

[00:03:29] Speaker 00:
But because this is summary judgment, we must not evaluate the credibility of the witness and leave that to the jury.

[00:03:38] Speaker 00:
The objective evidence shows that a jury could easily find that Dr. Smith was aware, at the very least, and most likely did in fact diagnose that it was an abscess.

[00:03:50] Speaker 00:
That evidence includes Dr. Adan's notes.

[00:03:55] Speaker 00:
At the time of the first visit, Dr. Adan was the ER physician that admitted and saw Mr. Hurtado initially.

[00:04:03] Speaker 00:
Dr. Adan writes twice.

[00:04:06] Speaker 00:
He had two separate discussions with Dr. Smith.

[00:04:10] Speaker 00:
The discussion that he had with Dr. Smith is after Dr. Adan

[00:04:16] Speaker 00:
noted that there's an abscess with osteomyelitis as shown by the CT results.

[00:04:23] Speaker 02:
But Dr. Adan, isn't the problem for you though that Dr. Adan is actually the one that signed off on releasing Mr. Hurtado back to prison.

[00:04:32] Speaker 02:
And if he had done a needle aspiration and if his conditions continued to escalate, then he could have been brought back

[00:04:40] Speaker 02:
But that wasn't Dr. Smith's fault.

[00:04:43] Speaker 02:
If anybody's fault, wasn't it Dr. Radon's for releasing him back to the prison?

[00:04:47] Speaker 02:
I apologize.

[00:04:48] Speaker 00:
I believe it was both.

[00:04:50] Speaker 00:
They're both as

[00:04:54] Speaker 00:
Their conduct was objectionable, both of them.

[00:04:57] Speaker 00:
The reason that I believe, and the reason we sued Dr. Smith, I believe he is more culpable is because Dr. Don was acting on his recommendation to discharge Mr. Hurtado without any further procedures such as an incision and drainage.

[00:05:14] Speaker 04:
Was acting on Dr. Smith's recommendation.

[00:05:17] Speaker 00:
He was acting on Dr. Smith's recommendation.

[00:05:19] Speaker 00:
Thank you.

[00:05:19] Speaker 00:
And the discharge notes show that Dr. Adan discharged Mr. Hurtado with a diagnosed abscess.

[00:05:30] Speaker 00:
And that is after Dr. Adan had two conversations with Dr. Smith.

[00:05:37] Speaker 02:
Is there anything inherently problematic with beginning the treatment of an abscess with a needle aspiration?

[00:05:48] Speaker 00:
The beginning might not necessarily be the problem.

[00:05:52] Speaker 00:
It's the failure to complete the drainage, where Dr. Smith would have known that there is additional care that needs to be provided.

[00:06:02] Speaker 00:
Instead, he only got a tiny bit of pus, if that.

[00:06:06] Speaker 00:
He realized he didn't locate the pus pocket, and he didn't complete the drainage.

[00:06:11] Speaker 00:
By his own concession, that is not the appropriate and necessary care for an abscess.

[00:06:18] Speaker 00:
And again, he knew there was an abscess.

[00:06:20] Speaker 00:
That's the disputed fact.

[00:06:22] Speaker 00:
The objective evidence in the hospital notes in the record that Dr. Adan completed show that

[00:06:29] Speaker 00:
there was absolutely no diagnosis considered other than an abscess.

[00:06:35] Speaker 03:
No, that's not quite correct.

[00:06:38] Speaker 03:
The doctor said at the time of his examination, there was no indication of a liquefied cavity.

[00:06:46] Speaker 03:
And I mean, it seemed to me that they were really trying to figure out what was going on with this individual.

[00:06:53] Speaker 03:
And if that's going to be deliberate indifference,

[00:06:58] Speaker 03:
as opposed to making a mistake or not going quite far enough, what have we done to the profession?

[00:07:06] Speaker 00:
Well, Your Honor, that is Dr. Smith's testimony in his deposition.

[00:07:10] Speaker 03:
Well, that's his testimony.

[00:07:11] Speaker 03:
He's the one that's being sued, and he's the one that was giving treatment.

[00:07:15] Speaker 03:
And he gave treatment over and over again, and went back and rechecked, and then finally went the way he went.

[00:07:25] Speaker 00:
If we were to defer to Dr. Smith's testimony, which is exactly what the district court did, we would be making improper credibility determinations.

[00:07:34] Speaker 03:
If you look at the contemporaneous notes... Well, the distinction is still between deliberate indifference and negligence.

[00:07:42] Speaker 03:
You haven't answered that question yet.

[00:07:44] Speaker 00:
Dr. Smith knew there was an abscess.

[00:07:47] Speaker 03:
He thought there might be.

[00:07:49] Speaker 00:
That is his testimony.

[00:07:50] Speaker 00:
That is a credibility determination.

[00:07:53] Speaker 00:
I am telling you that we disbelieve Dr. Smith.

[00:07:56] Speaker 00:
A jury could disbelieve Dr. Smith.

[00:07:59] Speaker 00:
If you look at the contemporaneous notes that were from the hospital record, there is absolutely no indication that Dr. Smith or anyone did not diagnose him with an abscess.

[00:08:12] Speaker 04:
Are there contemporaneous notes by Dr. Smith himself?

[00:08:17] Speaker 00:
There are notes from Dr. Smith when Mr. Hurtado was admitted later that evening for the second time.

[00:08:24] Speaker 00:
Dr. Smith again saw Mr. Hurtado.

[00:08:27] Speaker 00:
Dr. Smith writes in those notes that his story, he writes, and I'll tell you exactly what he writes because I think it's important.

[00:08:38] Speaker 00:
If I can turn this page.

[00:08:43] Speaker 00:
He writes under history of present illness

[00:08:46] Speaker 00:
that aspiration was attempted earlier today with no abscess cavity located.

[00:08:53] Speaker 00:
Under diagnostic imaging, he notes abscess of right perineal area.

[00:08:58] Speaker 00:
Under procedures, he notes attempted aspiration earlier today with no fluid return.

[00:09:05] Speaker 00:
Under assessment, he states right perineal abscess with extension to ischial tuberosity.

[00:09:11] Speaker 00:
So in Dr. Smith's own notes from later that evening, there is no indication that he's changed his mind and now realizes it is an abscess and that previously he had not diagnosed an abscess.

[00:09:23] Speaker 04:
There is only- What he's saying, just to make sure I have this, I'm understanding this correctly, what the notes are saying is now he determines there's a perineal abscess.

[00:09:38] Speaker 04:
He doesn't say that there was one earlier, but also he doesn't say that there wasn't, that he didn't think there was one earlier.

[00:09:45] Speaker 00:
Well, I believe we can infer that had he not diagnosed the abscess earlier, the earlier visit, and he's now diagnosing an abscess, that there would have been some indication that I previously saw a mass, but now I'm realizing it's an abscess.

[00:10:03] Speaker 00:
There is absolutely nothing in those notes that he changed his mind

[00:10:08] Speaker 00:
that he's reaching a diagnosis that he didn't reach before, especially when he's talking about the history of the present illness, when he's talking about, and he knows that the abscess cavity wasn't located.

[00:10:20] Speaker 00:
He uses that term, no abscess cavity located.

[00:10:23] Speaker 00:
So, yes, go ahead.

[00:10:25] Speaker 04:
For some study, when you started going through his notes, you mentioned a reference to a study showing a perineal abscess.

[00:10:34] Speaker 04:
Was that study done during the first visit or the second visit?

[00:10:38] Speaker 00:
That was the first visit, and that's the radiologist, the CT radiologist.

[00:10:43] Speaker 00:
The radiologist had an oral report to Dr. Adon saying that there was an abscess with osteomyelitis.

[00:10:52] Speaker 00:
That oral report was given to Dr. Adon before Dr. Adon had his discussion with Dr. Smith.

[00:10:59] Speaker 00:
Dr. Smith says he was guided by the CT findings when he was doing his needle aspiration.

[00:11:06] Speaker 00:
The CT findings weren't written up at that point.

[00:11:09] Speaker 00:
So the only CT findings he could be guided by was the oral report that the radiologist had given Dr. Adon.

[00:11:17] Speaker 00:
Dr. Adon must have passed it on to Dr. Smith.

[00:11:20] Speaker 00:
Dr. Adon describes those oral

[00:11:23] Speaker 00:
findings as the radiologist saying the CT shows an abscess with osteomyelitis.

[00:11:31] Speaker 00:
So yes, this is a link of inferences, and I really would appreciate you going with me on this link, but I do think it's very important not to take Dr. Smith's word for it that he did not locate the abscess cavity, which he says for the first time ever in this litigation.

[00:11:49] Speaker 04:
When he says he did not locate a paraneal abscess, does the record indicate how he looked for it?

[00:11:56] Speaker 04:
Did he just do one aspiration?

[00:11:58] Speaker 04:
Did he do multiple aspirations?

[00:12:01] Speaker 00:
The hospital notes do not say.

[00:12:04] Speaker 00:
I believe it was just one aspiration.

[00:12:05] Speaker 00:
But it is not completely clear.

[00:12:10] Speaker 04:
Is there any expert testimony on whether one aspiration is sufficient to determine whether there is an abscess

[00:12:19] Speaker 00:
Well, there is expert testimony that a needle aspiration is not the appropriate procedure once someone is aware that there's an abscess with osteomyelitis, as shown by the CT.

[00:12:32] Speaker 00:
So plaintiff's experts say that there was no reason to even attempt a needle aspiration at the time that Dr. Smith did once the CT results are told to him that this is an abscess with osteomyelitis.

[00:12:49] Speaker 00:
So once he does that, however, he needs to complete the drainage.

[00:12:53] Speaker 00:
If he's trying to drain the abscess, he did not do that.

[00:12:57] Speaker 00:
And he knows he did not do it.

[00:12:59] Speaker 00:
If he's trying to diagnose, as he says he is now,

[00:13:03] Speaker 00:
He never finished the diagnosis.

[00:13:06] Speaker 00:
There is no indication that there's any other diagnosis than abscess.

[00:13:10] Speaker 00:
So if he's really telling the truth that this was an attempt to diagnose, why do the medical records not reflect anything other than the diagnosis of an abscess?

[00:13:20] Speaker 00:
And if I may, I'd like to reserve the rest of my time for rebuttal.

[00:13:24] Speaker 00:
Thank you.

[00:13:27] Speaker 01:
Good morning, Your Honors.

[00:13:28] Speaker 01:
Todd Drake on behalf of the Appellee, Dr. Jerry Smith.

[00:13:31] Speaker 01:
Your Honors have touched right on Judge Kelly.

[00:13:34] Speaker 01:
You're directly on point with this.

[00:13:36] Speaker 01:
I'm just speaking.

[00:13:37] Speaker 01:
Sure thing.

[00:13:38] Speaker 01:
He wants you to repeat that.

[00:13:39] Speaker 00:
Sure thing.

[00:13:40] Speaker 01:
Judge Kelly, you're absolutely right.

[00:13:42] Speaker 01:
I'm happy to repeat that.

[00:13:43] Speaker 01:
The distinction here is what plaintiff has alleged and what their evidence has shown is a case of an alleged medical misdiagnosis of alleged negligence.

[00:13:54] Speaker 01:
There is no evidence that supports a deliberate indifference claim.

[00:13:58] Speaker 01:
There is no evidence that Dr. Smith consciously disregarded some risks to Mr. Hurtado, chose not to in any way treat it, chose not essentially to ignore it.

[00:14:11] Speaker 01:
The argument from plaintiff is that the medical care that was provided, mind you, there's no dispute.

[00:14:17] Speaker 01:
Dr. Smith provided medical care.

[00:14:20] Speaker 01:
He provided a host of medical care, including a review of symptoms, speaking with the patient, obtaining a history, reviewing the labs, reviewing films, doing the needle aspiration, prescribing the antibiotics, prescribing pain medication.

[00:14:35] Speaker 01:
What plaintiff, what the appellant wants to argue in this case is that that's

[00:14:39] Speaker 01:
inadequate care.

[00:14:40] Speaker 01:
They have that throughout their complaint.

[00:14:42] Speaker 01:
They have that throughout their brief.

[00:14:44] Speaker 04:
I see they're arguing a little differently.

[00:14:46] Speaker 04:
They're saying it's inadequate care if you know there's an abscess.

[00:14:52] Speaker 04:
And the argument is, one, that even though Dr. Smith testified that he didn't know there was an abscess, the jury can believe other evidence indicating he knew there was an abscess, such as the CT scan report and what the other physician had said.

[00:15:13] Speaker 04:
Second, that he, in fact, did testify that if there is a perineal abscess, he knew that the proper treatment is to drain it.

[00:15:25] Speaker 04:
So if that's the case, if there's no dispute that he knew what the proper care for perineal abscess was, then the issue is, could the jury find that he knew it was perineal abscess?

[00:15:42] Speaker 04:
So why don't you address that factually?

[00:15:45] Speaker 01:
Sure thing, Judge Harts.

[00:15:46] Speaker 01:
I agree that's their argument.

[00:15:48] Speaker 01:
There is no evidence to support that argument.

[00:15:50] Speaker 01:
The CT report discusses, just as you said, Judge Bacharach, a mass.

[00:15:55] Speaker 01:
It doesn't discuss anything about an abscess.

[00:15:59] Speaker 01:
Judge, or excuse me, Dr. Smith.

[00:16:01] Speaker 04:
The treating physician.

[00:16:05] Speaker 04:
Dr. Adan.

[00:16:10] Speaker 04:
I thought his notes say that the CT scan oral report said an abscess.

[00:16:18] Speaker 01:
That's the oral report he says that he received from the radiologist.

[00:16:21] Speaker 01:
That's correct.

[00:16:22] Speaker 01:
This goes back to... That was a contemporary note about... It was done after the... The note was done after this treatment was done after Mr. Rutato had essentially left the facility.

[00:16:33] Speaker 01:
It's contemporaneous, but all this... But it was before the second visit.

[00:16:37] Speaker 01:
It was before the second visit.

[00:16:39] Speaker 01:
And to your point, Judge Hartz, that's exactly what happened.

[00:16:41] Speaker 01:
Dr. Smith testified that what he was looking at, he knew that there was a mass.

[00:16:46] Speaker 01:
He knew there was something there.

[00:16:47] Speaker 01:
That's the whole reason he did the needle aspiration.

[00:16:50] Speaker 01:
He was trying to diagnose what is going on with this patient.

[00:16:54] Speaker 01:
That's his testimony.

[00:16:55] Speaker 01:
It's appendix page 181 to 191.

[00:16:59] Speaker 01:
That's why he does the needle aspirations, trying to look for, as Judge Kelly talked about, a liquefied cavity.

[00:17:05] Speaker 01:
essentially a walled-off abscess.

[00:17:09] Speaker 04:
Under his testimony, there's no liability.

[00:17:11] Speaker 04:
I think plaintiff admits that.

[00:17:14] Speaker 04:
I'm trying to focus on whether there's evidence that he

[00:17:20] Speaker 04:
knew was told by an authoritative source that there was an abscess.

[00:17:24] Speaker 04:
And what we have is a contemporaneous note for the second visit by Dr. Adan saying he was told by the radiologist, I guess, that the CT scan showed an abscess.

[00:17:39] Speaker 04:
Now, you said two things here.

[00:17:41] Speaker 04:
The report of the CT scan just says mass.

[00:17:45] Speaker 04:
It doesn't say abscess.

[00:17:47] Speaker 04:
That's correct.

[00:17:48] Speaker 04:
How do you deal with the fact that a note indicates that the radiologist had told Dr. Adan, who then consulted with Dr. Smith, that

[00:17:59] Speaker 04:
There was a man.

[00:18:00] Speaker 01:
This is at the time of the second visit.

[00:18:02] Speaker 01:
This is when Mr. Hurtado is returned back to the facility.

[00:18:05] Speaker 01:
At that point, he had increased pain.

[00:18:07] Speaker 01:
He was hypotensive.

[00:18:09] Speaker 01:
Again, this is Dr. Adan is he actually consults with Dr. Smith again at this second visit.

[00:18:17] Speaker 01:
And that's when the decision is made to admit that's when

[00:18:20] Speaker 01:
Dr. Smith is thinking, okay, this is a pararectal abscess.

[00:18:25] Speaker 01:
There is concern here for something beyond just trying to diagnose what's going on.

[00:18:31] Speaker 04:
I'm trying to get the chronology right there.

[00:18:34] Speaker 04:
My understanding from opposing counsel was that Dr. Adan's note indicates during the first visit he was told that the CT scan showed an abscess.

[00:18:50] Speaker 04:
And that's one fact.

[00:18:54] Speaker 04:
The other important fact is that Dr. Adan consulted with Dr. Smith, and one would think, at least I think it's a reasonable inference, that Dr. Adan would report to Dr. Smith what he'd been told about the CT scan.

[00:19:12] Speaker 01:
It's really the distinction, Your Honor, between, there's no real,

[00:19:16] Speaker 01:
question that there is an abscess there.

[00:19:19] Speaker 01:
That's not the question.

[00:19:20] Speaker 01:
The question is, was this a walled-off abscess that had this liquefication?

[00:19:26] Speaker 01:
Was there a liquefied cavity?

[00:19:27] Speaker 01:
Because that is what then leads to the additional treatment, the IND.

[00:19:33] Speaker 04:
So the abscess, okay, then I misunderstood the medical testimony.

[00:19:40] Speaker 04:
I thought if it was an abscess, you have to drain it.

[00:19:44] Speaker 04:
No, I'm sorry.

[00:19:45] Speaker 04:
And perhaps it's a Waldorf abscess, then it's not necessary to drain the Waldorf.

[00:19:51] Speaker 01:
That's exactly what Dr. Smith explained in his testimony.

[00:19:54] Speaker 01:
That's exactly what he's looking for.

[00:19:56] Speaker 01:
This idea that he somehow conceded that if this was an abscess and he knew he was doing something wrong, that's just not correct.

[00:20:07] Speaker 01:
plaintiff's counsel was asking him questions related to his expert report, the Dr. Schechter's report.

[00:20:12] Speaker 01:
Do you agree with Dr. Schechter on this?

[00:20:15] Speaker 01:
What Dr. Smith said was that, no, I don't agree with Dr. Schechter.

[00:20:18] Speaker 01:
In fact, this opinion about that I needed to somehow, the needle aspiration failed to go ahead and remove, totally drain this abscess, that's not even pertinent to this case.

[00:20:30] Speaker 01:
Because what I am trying to do is I am trying to diagnose, does he have a liquefied cavity?

[00:20:36] Speaker 01:
Does he have something

[00:20:37] Speaker 01:
that requires additional treatment, the incision and drainage.

[00:20:40] Speaker 01:
Dr. Smith testified, he said, had there been liquefied care, had I found that, I would have considered other treatment.

[00:20:47] Speaker 01:
I would have gone a different direction, but that did not exist.

[00:20:50] Speaker 04:
Did plaintiff's experts say even if it was walled off, it should be drained?

[00:20:55] Speaker 01:
Well, that's the key is if it's walled off a strain.

[00:20:58] Speaker 01:
What plaintiff's experts are suggesting is that the moment anyone comes in with any sign of infection or an abscess like this, you need to immediately go to incision and drainage.

[00:21:09] Speaker 01:
That is a dispute of the standard of care.

[00:21:12] Speaker 01:
That really is the crux of this.

[00:21:15] Speaker 01:
They say this is the problem.

[00:21:17] Speaker 04:
That would make Dr. Smith liable for negligence.

[00:21:22] Speaker 04:
Exactly.

[00:21:24] Speaker 04:
Even though an expert witness may testify that Dr. Smith should have done this immediately, Dr. Smith did not conceive that that was his knowledge at the time.

[00:21:34] Speaker 01:
Exactly right.

[00:21:35] Speaker 01:
He didn't have that knowledge.

[00:21:36] Speaker 01:
In fact, it wasn't they just didn't have that knowledge.

[00:21:39] Speaker 01:
He testified

[00:21:40] Speaker 01:
It was exactly opposite to that.

[00:21:41] Speaker 01:
What he found was there was no liquefied cavity.

[00:21:45] Speaker 04:
I mean, knowledge of the proper treatment.

[00:21:47] Speaker 01:
Right, right.

[00:21:48] Speaker 01:
Knowledge of the proper treatment would be, had I found a liquefied cavity, a walled-off abscess, then yes, I would have considered an IND.

[00:21:56] Speaker 01:
I would have considered having him admitted.

[00:21:58] Speaker 01:
That's why when he returns later, and now you've got the note in the chart, okay, now we've got some concern that this is a Waldorf, now they admit him, now they have him in, it's the reason the next morning surgery was done, to drain that abscess.

[00:22:14] Speaker 01:
This is all part of the physician's workup.

[00:22:16] Speaker 01:
They're looking at what's going on with this patient, why is he having these symptoms,

[00:22:21] Speaker 01:
That's exactly what Dr. Smith is doing is trying to diagnose those symptoms.

[00:22:26] Speaker 01:
He didn't say, oh, I knew that this was an abscess and I knew that my treatment of that was not appropriate to do it.

[00:22:32] Speaker 01:
That's just not supported by it.

[00:22:34] Speaker 01:
It gets back to your honors.

[00:22:37] Speaker 01:
What the plaintiff has demonstrated, and Ms.

[00:22:39] Speaker 01:
Orshon talked about this, they have to show some culpable state of mind.

[00:22:44] Speaker 01:
Their experts agree.

[00:22:46] Speaker 01:
They cannot say that Dr. Smith was doing anything to try and harm this patient.

[00:22:51] Speaker 01:
They both testify.

[00:22:52] Speaker 01:
They agree they cannot speak to Dr. Smith's state of mind.

[00:22:56] Speaker 01:
They can't say what he was thinking or that he was somehow consciously disregarding the risk.

[00:23:01] Speaker 04:
Their theory, if it's factually based,

[00:23:04] Speaker 04:
tell me if there's something wrong with their theory.

[00:23:06] Speaker 04:
Their theory is that there's evidence that Dr. Smith knew there was an abscess.

[00:23:15] Speaker 04:
And second, that Dr. Smith admitted that if there was an abscess, the proper treatment is to drain it surgically, however, immediately, not just aspirate.

[00:23:27] Speaker 01:
I agree that's their argument.

[00:23:28] Speaker 01:
The record evidence doesn't support that.

[00:23:30] Speaker 04:
And if those facts were true,

[00:23:33] Speaker 04:
that there's evidence to support that Dr. Smith knew there was an abscess and that Dr. Smith admitted that if there's an abscess, he has to drain it.

[00:23:45] Speaker 04:
If that's true, would that not show deliberate indifference?

[00:23:49] Speaker 01:
only if it was that he knew that this posed a risk to Mr. Hurtado and that he consciously chose to disregard that risk.

[00:23:59] Speaker 01:
Again, what you're talking about are different forms of treatment of a medical condition.

[00:24:04] Speaker 01:
It's a difference of opinion as to what is the proper treatment of the patient, and that's what they're challenging.

[00:24:09] Speaker 01:
Not the way I phrased it.

[00:24:11] Speaker 04:
The way I phrased it, there's no dispute about Dr. Smith's opinion.

[00:24:16] Speaker 04:
She's asserting two things.

[00:24:19] Speaker 04:
One is that Dr. Smith agreed that in X circumstance, the proper treatment is surgical.

[00:24:27] Speaker 04:
And second, that the circumstance leading to that requirement of treatment was there's evidence that Dr. Smith knew that was the situation at the time.

[00:24:42] Speaker 04:
So I want to try to make sure where you two are differing.

[00:24:46] Speaker ?:
Sure.

[00:24:47] Speaker 04:
Do you agree that if she's factually correct in her assertions, that that would support the claim of deliberate indifference?

[00:24:58] Speaker 01:
No, because you're still discussing a choice of treatments.

[00:25:03] Speaker 01:
This court has recognized since Self versus Crumb that a doctor's decisions about what forms of diagnostic techniques or treatments should be required.

[00:25:15] Speaker 04:
You're absolutely right on that principle.

[00:25:17] Speaker 04:
The question is the facts here.

[00:25:19] Speaker 04:
And she says that Dr. Smith acknowledged in his testimony that if he knew there was an abscess, he should have performed the surgery sooner.

[00:25:30] Speaker 04:
Do you disagree with that?

[00:25:31] Speaker 01:
I disagree that that's what he said in his deposition.

[00:25:34] Speaker 01:
I disagree.

[00:25:36] Speaker 01:
The evidence is that Dr. Smith, again, he's responding to these questions based on the plaintiff's expert report.

[00:25:42] Speaker 01:
Do you agree?

[00:25:43] Speaker 01:
And he says, no, I don't agree.

[00:25:44] Speaker 01:
In fact, he says, I don't think that's even pertinent to this case, because what you're discussing over here, what Dr. Schechter, the plaintiff's expert, is discussing, is not the facts of this case.

[00:25:55] Speaker 01:
In a hypothetical world, sure, if Mr. Hurtado had come in with a walled-off

[00:26:02] Speaker 01:
Abscess and there's liquefied cavity and dr. Smith says I see that that's a walled-off.

[00:26:06] Speaker 01:
There's a liquefied cavity there I know that the treatment for that is incision and drainage and then chose not to do that That could support a deliberate indifference claim.

[00:26:17] Speaker 01:
That's not the evidence in this case.

[00:26:19] Speaker 01:
It's not even close.

[00:26:20] Speaker 04:
There's no evidence that he knew it was a walled-off abscess

[00:26:24] Speaker 01:
That's right.

[00:26:24] Speaker 01:
First of all, he specifically said, I found that there was no liquefied cavity here that required it.

[00:26:32] Speaker 01:
So that's the first step of it.

[00:26:35] Speaker 04:
A jury cannot disbelieve him based on other evidence in the medical record.

[00:26:42] Speaker 01:
The jury, again, I agree.

[00:26:44] Speaker 01:
This is not a credibility fight over Dr. Smith's deposition.

[00:26:48] Speaker 01:
That's not what the district court did here.

[00:26:50] Speaker 01:
He didn't rely on Dr. Smith's deposition testimony.

[00:26:53] Speaker 01:
What he really relied on, the district court relied on more than anything, was the expert report from plaintiff

[00:27:00] Speaker 01:
of Dr. Harris who said, that's right, reasonable physicians can disagree about how to treat this condition.

[00:27:09] Speaker 01:
What Dr. Smith did, his experts say, that is appropriate treatment.

[00:27:13] Speaker 01:
Dr. Harris said, that's right.

[00:27:15] Speaker 01:
Those are reasonable physicians.

[00:27:17] Speaker 01:
They can disagree on this.

[00:27:18] Speaker 01:
And that's exactly the point.

[00:27:20] Speaker 01:
Then it is not patently unreasonable, the care that was provided.

[00:27:24] Speaker 01:
There is no evidence that he knew of this and consciously chose to disregard that risk.

[00:27:31] Speaker 01:
So that's really the issue.

[00:27:33] Speaker 01:
Could a jury believe that Dr. Smith was not credible?

[00:27:37] Speaker 01:
Sure, but that's not the basis of the summary judgment.

[00:27:41] Speaker 01:
So this idea of, you know, she talked about this link of inferences that need to be made, 10th Circuit law is clear.

[00:27:49] Speaker 01:
You have to have evidence.

[00:27:51] Speaker 01:
You can't have speculation.

[00:27:52] Speaker 01:
You can't ask, okay, come along with me on this idea that Dr. Smith is somehow not telling the truth, that he knows this, that he knows his treatment's inappropriate,

[00:28:02] Speaker 01:
that he knows the proper treatment needs to be done and he chooses not to do it, all because you just don't believe Dr. Smith.

[00:28:10] Speaker 02:
Could a fact finder reasonably infer, viewing the evidence favorably to the estate of Hurtado, that when Dr. Smith did the needle aspiration and he looks and there is a pus that he sees, he says later in his deposition that it wasn't walled off, but why is it an unreasonable inference for a fact finder to infer

[00:28:32] Speaker 02:
that given the escalation, what happened within a 24-hour period, what he was looking at, he must have seen that the pus was surrounded by tissue, that it was a liquefied cavity, notwithstanding what he later denied, based on the increase of pus that accumulates within a very short period of time.

[00:28:56] Speaker 01:
It would still only support a medical negligence claim, Judge Bacharach.

[00:29:00] Speaker 01:
What they're simply saying is that he somehow should have known that this patient would deteriorate over time, that there was enough evidence there for him at the time to say, I need to go ahead and proceed to an incision in drainage.

[00:29:14] Speaker 01:
I need to admit this patient.

[00:29:16] Speaker 01:
I can't just prescribe him oral antibiotics.

[00:29:19] Speaker 01:
We can't send him back to the jail.

[00:29:21] Speaker 01:
All those I agree that that might support a negligence claim that goes directly to and that's where their experts talk about.

[00:29:30] Speaker 01:
The standard treatment, the standard care of treatment is incision and drainage.

[00:29:35] Speaker 01:
That's medical negligence.

[00:29:37] Speaker 01:
That's what they're arguing in this case.

[00:29:39] Speaker 01:
They do not argue.

[00:29:40] Speaker 01:
Their experts don't provide any evidence.

[00:29:43] Speaker 01:
There is no evidence in this record that Dr. Smith knew that this presented a risk to Mr. Hurtado, that this was some walled-off abscess, that he consciously disregarded that risk.

[00:29:53] Speaker 01:
They're asking to make a set of inferences based on argument.

[00:29:57] Speaker 01:
Their expert testimony doesn't support it.

[00:29:59] Speaker 01:
Dr. Smith's deposition testimony doesn't support it.

[00:30:02] Speaker 01:
So based on that, Your Honors, we're going to ask that this court affirm summary judgment in favor of Dr. Smith.

[00:30:08] Speaker 04:
Give her three and a half minutes, please.

[00:30:11] Speaker 00:
So we absolutely disagree that this is not a credibility fight.

[00:30:15] Speaker 00:
And in fact, that is the main failing of the district court order that the district court did not even recognize.

[00:30:22] Speaker 00:
that this is a credibility fight between Dr. Smith and the objective evidence, the circumstantial evidence that shows, in fact, Dr. Smith knew- Well, but that still is not deliberate indifference.

[00:30:34] Speaker 03:
You can be stupid, but you're not deliberately indifferent.

[00:30:37] Speaker 03:
And he said specifically, time after time, I did not attempt to manage it by needle aspiration.

[00:30:45] Speaker 03:
I attempted to diagnose, and that's what he was doing.

[00:30:49] Speaker 03:
And he initially said that he did not find a liquefied pocket at that first point.

[00:30:58] Speaker 03:
So I just don't understand where we're going with this, because the absolute liability, if you make a wrong diagnosis, you're deliberately indifferent.

[00:31:05] Speaker 03:
That cannot be the rule.

[00:31:07] Speaker 03:
All my kids are doctors.

[00:31:09] Speaker 03:
It would be disaster.

[00:31:10] Speaker 00:
He didn't make a wrong diagnosis as a mistake.

[00:31:14] Speaker 00:
Whoops, I made a wrong diagnosis, like in self.

[00:31:17] Speaker 00:
In self, the symptoms would support a wide variety of different types of conditions.

[00:31:24] Speaker 00:
The doctor made a decision at the time that seemed reasonable and consistent with the symptoms, and there's absolutely no evidence in self that he did know it was in fact endocarditis.

[00:31:39] Speaker 00:
In this case, the objective evidence shows that Dr. Smith is not telling the truth.

[00:31:44] Speaker 00:
So there is no reason at summary judgment we should just go ahead and believe Dr. Smith's subsequent testimony.

[00:31:51] Speaker 03:
Why didn't you file a negligence, a malpractice action here?

[00:31:56] Speaker 00:
It's a public hospital.

[00:31:57] Speaker 00:
I'm sorry?

[00:31:58] Speaker 00:
He's a public employee, so he's immune under the CJIA.

[00:32:02] Speaker 00:
So initially we did, but we dismissed it once we had conclusive evidence that he was a public employee.

[00:32:10] Speaker 00:
I do want to make very clear that Dr.

[00:32:13] Speaker 00:
Smith said abscesses cannot be fully drained by needle antibiotics are inadequate to treat if there's a known liquefied pocket antibiotics are commonly considered inadequate to treat

[00:32:27] Speaker 00:
if there is a known pocket of pus.

[00:32:29] Speaker 00:
And then this is his deposition where he's denying that he identified that there was a pocket of pus, that he knew that there was a pocket of pus.

[00:32:38] Speaker 00:
But he had the CT findings.

[00:32:40] Speaker 00:
He had the oral report from this radiologist via Dr. Adan.

[00:32:47] Speaker 00:
That said, this is a mass with us.

[00:32:49] Speaker 03:
Just a minute.

[00:32:49] Speaker 03:
Sorry?

[00:32:50] Speaker 03:
The CT scan did not definitively state what you're suggesting it stated.

[00:32:57] Speaker 00:
That was the recorded CT scan, which was recorded later.

[00:33:01] Speaker 00:
It was not in the notes at the time that Dr. Smith performed the aspiration.

[00:33:07] Speaker 00:
He had to rely on the oral report.

[00:33:10] Speaker 00:
The oral report is that there was an abscess with osteomyelitis.

[00:33:14] Speaker 00:
The fact that there was an abscess with osteomyelitis per the CT findings means that he knew there was an abscess.

[00:33:23] Speaker 00:
He knew the risk of not fully draining the abscess.

[00:33:26] Speaker 00:
because it's osteomyelitis, a very dangerous bone infection that, in fact, can be fatal.

[00:33:32] Speaker 00:
And if you look at Schechter's report, he explains this whole timing of the CT report and why there is absolutely no way that Dr. Smith could have relied on the written CT report at the time.

[00:33:46] Speaker 00:
And I believe my time is up, but again, I want to make very clear this is a credibility dispute.

[00:33:51] Speaker 00:
Thank you very much.

[00:33:53] Speaker 02:
I just wanted to ask you something just to make sure that I understand it.

[00:34:00] Speaker 02:
Is your assumption or position that an abscess is by definition walled off?

[00:34:07] Speaker 00:
I believe it's actually not.

[00:34:09] Speaker 00:
It is walled off.

[00:34:10] Speaker 00:
It's a liquid cavity.

[00:34:12] Speaker 02:
Surrounded by tissue.

[00:34:14] Speaker 00:
Yes.

[00:34:14] Speaker 00:
So it's not the needle aspiration that would have revealed to Dr. Smith necessarily that there was an abscess.

[00:34:21] Speaker 00:
It's the other findings.

[00:34:23] Speaker 00:
It's the CT oral report that there was an abscess with osteomyelitis.

[00:34:27] Speaker 02:
That fully answers my question.

[00:34:29] Speaker 02:
Thank you so much.

[00:34:29] Speaker 02:
Thank you.

[00:34:31] Speaker 02:
Thank you, counsel.

[00:34:32] Speaker 02:
This is submitted.

[00:34:33] Speaker 02:
Counselor excused.