[00:00:00] Speaker 03:
And we'll go to the next case on the argument calendar, Hager versus United States.

[00:00:52] Speaker 03:
Whenever you're ready, counsel.

[00:01:04] Speaker 04:
Good morning, your honors.

[00:01:05] Speaker 04:
Jason Kelly, or may it please the court, Jason Kelly for the plaintiff's appellants.

[00:01:14] Speaker 04:
Excuse me.

[00:01:15] Speaker 04:
I'm going to try to reserve some time for the end because

[00:01:20] Speaker 04:
Well, I'm going to try to reserve some time for the end.

[00:01:23] Speaker 04:
We have, as the panel's aware, this is a rule, an application of Rule 56.

[00:01:30] Speaker 04:
And both at the trial level, and I think in the papers, there's a concession, there has to be a concession that the triage nurse at issue in this case did not perform the proper mental health assessment.

[00:01:47] Speaker 04:
If a proper, our testimony is, our evidence is that if a proper mental health assessment had been done on Ed Hagar, he would have been classified at a higher risk level.

[00:01:58] Speaker 04:
And because of that higher risk level, one of two things had to happen.

[00:02:01] Speaker 04:
Either refer him directly to a provider that day, or at a minimum, advise a higher level provider of Ed's situation and his needs.

[00:02:13] Speaker 04:
And if he had, and we have Dr. Joe.

[00:02:15] Speaker 02:
He was in fact referred to a higher level provider just in 30 days, but he was.

[00:02:20] Speaker 04:
Well, so, and this is where we can't, there's a lot of words being sliced and diced and frankly being interpreted in favor of the US.

[00:02:30] Speaker 04:
The testimony, and I'll get to the regular triage nurse, Edward Scheer's testimony in a bit, but the testimony is, if possible, have him seen that day.

[00:02:44] Speaker 04:
And the defense all along has been, he didn't need to be seen that day.

[00:02:47] Speaker 02:
When she was asked whether that was the standard of care, she said, no.

[00:02:52] Speaker 04:
So this is where we start to get into, again, the slicing and dicing of words.

[00:02:58] Speaker 04:
The question was, is it, this is where we talk about making a referral versus passing it on to a provider, neither of which was done.

[00:03:07] Speaker 04:
And the third issue was, was he required to be seen that day?

[00:03:12] Speaker 02:
I don't understand.

[00:03:13] Speaker 04:
Sure.

[00:03:15] Speaker 02:
Excuse me.

[00:03:17] Speaker 04:
The defense was not, he was, I'm sorry?

[00:03:22] Speaker 02:
I was about to ask a question, but you cut me off.

[00:03:24] Speaker 04:
I'm sorry.

[00:03:26] Speaker 02:
You said there were three possibilities.

[00:03:28] Speaker 02:
One was a referral.

[00:03:29] Speaker 02:
What was the second?

[00:03:31] Speaker 04:
The one was a direct referral.

[00:03:33] Speaker 04:
The second was to give it to a higher level provider to see if the higher level provider wanted to see it.

[00:03:41] Speaker 02:
That's not the same.

[00:03:43] Speaker 04:
That's different than a referral than a than an admin.

[00:03:46] Speaker 04:
Yes.

[00:03:47] Speaker 02:
Give it to you and go talk to a higher level.

[00:03:49] Speaker 02:
The nurse should have gone to talk to a higher level provider to ask whether the higher level provider wants to see the person.

[00:03:55] Speaker 04:
Correct.

[00:03:57] Speaker 04:
Okay.

[00:03:58] Speaker 04:
And the third issue, the third thing at issue is whether it's required to be seen that day.

[00:04:06] Speaker 04:
So we've put forth, he was not at the high level of risk.

[00:04:11] Speaker 04:
he wasn't, you know, coming in.

[00:04:13] Speaker 04:
In fact, nurse Markey felt that there was a low level of risk, right?

[00:04:18] Speaker 03:
And our critique of that is that it wasn't a low level of risk.

[00:04:21] Speaker 03:
Well, but my understanding, am I wrong that I didn't recall that it was below the standard of care for her to have found it at a low level of risk?

[00:04:33] Speaker 03:
Am I remembering that wrong?

[00:04:36] Speaker 04:
Yeah, we have, and this is in nurse Puchkor's

[00:04:40] Speaker 04:
Transcript.

[00:04:43] Speaker 04:
This would be.

[00:04:44] Speaker 04:
So it's in the supplemental excerpt record at page.

[00:04:54] Speaker 04:
83 it's page 27 of which course depositions looking at the warning signs.

[00:05:01] Speaker 04:
I would have said yes, she should have and or communicated to a provider to see him that day.

[00:05:07] Speaker 03:
Well, the fact that she would have doesn't mean that not doing it was below the standard of care.

[00:05:14] Speaker 01:
I think that's a problem in your presentation is that where do you say that an expert witness said that this was below the state governing standard of care?

[00:05:28] Speaker 04:
Well, and I think this is addressed best by the Rule 56 standard and the case law that says we don't

[00:05:37] Speaker 04:
require magic words to set standard of care.

[00:05:40] Speaker 04:
The testimony taken as a whole is given these signs in that situation, he should have been referred.

[00:05:48] Speaker 04:
Now, if she said given these signs in this situation, it's the standard of care of a reasonably prudent medical triage nurse to send him on, we wouldn't be here?

[00:06:02] Speaker 04:
I mean, I think the case law is pretty clear that the fact finder is to look at the, and we've got these words interspersed throughout.

[00:06:08] Speaker 04:
Should have, ought to, minimally competent, standard of care.

[00:06:13] Speaker 04:
What was the other one?

[00:06:14] Speaker 04:
Required.

[00:06:16] Speaker 04:
And they're used nearly interchangeably without any precise definition by both defense counsel in the questioning, by the US in its papers, and the trial court.

[00:06:28] Speaker 04:
So when you don't have a clear definition,

[00:06:31] Speaker 04:
It says she should have done it.

[00:06:33] Speaker 04:
There was no follow-up questioning.

[00:06:35] Speaker 04:
Well, is that what you would have done or is that what the standard of care requires?

[00:06:39] Speaker 04:
There was none of that.

[00:06:40] Speaker 04:
And in fact, when asked, where do you get that information?

[00:06:42] Speaker 04:
This was on it's, I mean, it's a short deposition transcript.

[00:06:47] Speaker 04:
She said, I get that from the American Psychiatric Nurses Association.

[00:06:51] Speaker 04:
It's a cancer.

[00:06:52] Speaker 03:
Let me focus on this a little, and I'm going to bring this up with your friend.

[00:06:56] Speaker 03:
Um, I think you have.

[00:06:59] Speaker 03:
a pretty good argument that the district court erred in finding that the standard of care didn't require that a suicide risk assessment be performed for every patient at every appointment.

[00:07:13] Speaker 03:
But let's assume for the minute that I believe the district court erred in that finding.

[00:07:23] Speaker 03:
I'm still having trouble with causation.

[00:07:26] Speaker 03:
And the reason I'm having trouble with causation is even if the standard of care required that a suicide risk assessment be performed for every patient at every appointment, as your expert testified at SCR 85, where is that tied up with something, the standard of care required something to be done that day because Mr. Hager tragically killed himself that day.

[00:07:56] Speaker 03:
So if something hadn't happened that day, I don't see how there could be causation.

[00:08:02] Speaker 03:
But even if the standard of care required the suicide risk assessment be performed that day, how does that get to and then something else would have happened that would have stopped him or could have stopped him from killing himself if there's nothing else that had to happen that day?

[00:08:24] Speaker 04:
So that, the assessment came back at low, the preliminary screening came back at low risk.

[00:08:31] Speaker 04:
And it's questions like, are you thinking of killing yourself?

[00:08:33] Speaker 04:
Okay.

[00:08:35] Speaker 04:
There's issues with that.

[00:08:37] Speaker 02:
There were like three screening, three different screening questionnaires, right?

[00:08:43] Speaker 04:
Well, some of them were suicides.

[00:08:48] Speaker 04:
There were three different forms used.

[00:08:51] Speaker 04:
Yes.

[00:08:52] Speaker 04:
Yes, your honor.

[00:08:54] Speaker 02:
He was persistent about this, at least.

[00:08:56] Speaker 02:
He said it more than once.

[00:08:59] Speaker 04:
And so, if they had the full mental health assessment, we believe, and Nurse Pritchcourt says, look, based on what I've seen, if you do the full assessment, you rate him at a higher risk.

[00:09:11] Speaker 02:
Does she say that if there were… I mean, that's another accusation question, a different one from the one that Judge Bennett was identifying.

[00:09:19] Speaker 02:
Did she say that if you had done a full assessment, he would have been rated at a higher risk?

[00:09:24] Speaker 04:
She says what she says is based on what I'm seeing here.

[00:09:27] Speaker 04:
I can tell you he's a higher risk.

[00:09:30] Speaker 02:
And if you had done the larger thing here, what does that mean?

[00:09:33] Speaker 04:
Things such as I don't want to be alone.

[00:09:35] Speaker 04:
I'm in my own head.

[00:09:36] Speaker 04:
I can't sleep.

[00:09:38] Speaker 04:
I'm asking for help.

[00:09:39] Speaker 02:
Well, she said, I mean, actually, that's the part of the record that troubles me the most.

[00:09:44] Speaker 02:
He did say all those things to the to the nurse and she didn't regard that as

[00:09:49] Speaker 02:
putting him at a higher risk, and that kind of bothers me a lot.

[00:09:53] Speaker 02:
But since he already said those things, what would have been different if he had done a formal risk assessment?

[00:10:00] Speaker 02:
If she had done the proper risk assessment, he would have come back at a higher risk, and then the algorithm she's following would have... And for that fact, in terms of a contested fact, we can rely on the expert witnesses' testimony.

[00:10:14] Speaker 02:
Where is that?

[00:10:18] Speaker 04:
The first place, the one that our causation expert, Dr. Joyner, says, based on the assessment he did, he was at a moderate risk.

[00:10:29] Speaker 04:
We also know that if he was classified at a higher risk, even the defense expert, Nurse Giacomo, if I'm pronouncing that properly, Giacomo,

[00:10:43] Speaker 04:
would have also referred him.

[00:10:46] Speaker 04:
So the question is, was the low risk assessment a standard of care breach or not?

[00:10:52] Speaker 03:
Okay, but counsel, getting back to my question, your Dr. Joyner, PhD said, if he had been able to talk to a counselor that day, it is far more likely than not that he would not have attempted suicide that day.

[00:11:06] Speaker 03:
And my question is, even if

[00:11:10] Speaker 03:
the standard of care required that a formal suicide risk assessment be performed by nurse Markey.

[00:11:19] Speaker 03:
Where is the testimony that that would have meant that he would have seen anyone else that day?

[00:11:28] Speaker 04:
Understood.

[00:11:29] Speaker 04:
So our, okay, your honor, we are arguing

[00:11:34] Speaker 04:
and that if the formal, the more thorough mental health risk assessment had been done properly, now granted, we have to assume it was properly done, then he would have come back at a higher risk.

[00:11:47] Speaker 04:
So by not performing the assessment, given the indicators that we do have, the risk was undervalued.

[00:11:54] Speaker 03:
Council, where in the record does somebody testify that even if the suicide risk assessment had come back

[00:12:03] Speaker 03:
at a higher level, the standard of care would have required that he sees someone else that day.

[00:12:12] Speaker 03:
Point me to a place in the record where someone said that.

[00:12:16] Speaker 04:
The problem is we can't perform that assessment because it wasn't done and he's not here.

[00:12:22] Speaker 02:
But Dr. Joyner, for example, essentially made that determination but not in a way that's helpful to you because he

[00:12:34] Speaker 02:
said that what he knew indicated a suicide risk level that is at least of moderate degree.

[00:12:42] Speaker 02:
And then he said that there had to be caring follow-up within hours to days.

[00:12:49] Speaker 02:
Then he said there had to be ample encouragement to visit a physician within hours to days.

[00:12:54] Speaker 02:
And then reference the day of the visit to principles of behavioral activization.

[00:13:03] Speaker 02:
that can be instituted immediately, like going for walks in the woods and stuff.

[00:13:08] Speaker 02:
And that's it.

[00:13:09] Speaker 02:
So he didn't, he, who was the causation expert, didn't say that if there were a moderate degree of risk that he would have to see somebody that day.

[00:13:20] Speaker 04:
He said hours to days.

[00:13:22] Speaker 04:
That is correct, your honor.

[00:13:23] Speaker 04:
And go back to, I think it's his first paragraph or first sentence.

[00:13:28] Speaker 04:
This is a cry for help.

[00:13:30] Speaker 04:
Get him to see someone within hours or days.

[00:13:34] Speaker 04:
Let him know that someone cares.

[00:13:37] Speaker 02:
If that's a big... Well, the 30 days out certainly seems extremely troublesome, but it wouldn't have made a difference.

[00:13:44] Speaker 02:
That's the problem here.

[00:13:47] Speaker 02:
If it hadn't been that day, nothing would have helped.

[00:13:54] Speaker 04:
Right.

[00:13:55] Speaker 04:
And, well, if that day

[00:13:59] Speaker 04:
He had been given something more than go home to your empty house with your empty head and your dark thoughts and your guns and promise to give them away and come see me in a month.

[00:14:10] Speaker 02:
Well, she did say he should give the guns away and he did purport to do that, although obviously he didn't give them all away.

[00:14:16] Speaker 04:
That's why family members are needed to help.

[00:14:20] Speaker 04:
Well, this was family members, right?

[00:14:24] Speaker 03:
I thought that's who he gave the guns to, but not all of them.

[00:14:29] Speaker 03:
Exactly.

[00:14:30] Speaker 04:
So there's a difference between the guilt and the shame of going to your in-laws and saying, you need to take this form.

[00:14:38] Speaker 02:
But he did it.

[00:14:38] Speaker 02:
He did do that.

[00:14:39] Speaker 02:
So that's another causation problem.

[00:14:41] Speaker 02:
Because that may have been a bad idea, but he did it.

[00:14:44] Speaker 02:
And so whether that was a good or bad idea, it wasn't the cause of the problem, because he did it.

[00:14:54] Speaker 02:
But he apparently kept a gun back.

[00:14:57] Speaker 04:
These are all fact arguments, Your Honor.

[00:14:58] Speaker 04:
That's my point.

[00:14:59] Speaker 02:
No, it's not a fact argument.

[00:15:01] Speaker 02:
It's not a contested fact that he did it.

[00:15:04] Speaker 04:
Well, our contention is he withheld from his in-laws because he was shown a lack of care by the people who tasked with helping him.

[00:15:15] Speaker 02:
But you can point to the gun, the fact that she didn't at least try to do something about the guns, which actually the biggest barrier to which was the embarrassment, but he did it anyway.

[00:15:30] Speaker 04:
Right, so there's, again, that's where the intervention of the medical provider calling your in-laws is superior to, promise me you'll do it.

[00:15:39] Speaker 04:
Counsel, you don't have much time left.

[00:15:40] Speaker 04:
We'll give you a little bit more time, but would you like to reserve?

[00:15:43] Speaker 04:
I'd like to reserve, thank you.

[00:15:45] Speaker 03:
And we'll give you some extra time.

[00:15:47] Speaker 04:
Thank you, appreciate it.

[00:16:06] Speaker 00:
Good morning your honors may it please the court Catherine branch on behalf of the United States.

[00:16:11] Speaker 00:
I think importantly, in this case plaintiffs misstate the facts this.

[00:16:17] Speaker 00:
They miss frame the issues before the court, and they seek to have this court decide an issue of causation that was not before the district court.

[00:16:25] Speaker 00:
They also raise new arguments and their reply brief that were not presented in their opening brief or raised before the district court specifically their argument regarding institutional liability.

[00:16:36] Speaker 00:
The way that plaintiffs present the issue before this court is whether the trial court aired in ruling as a matter of law that there was nothing the substitute triage nurse could have done to give Ed Hager a chance not to die from suicide.

[00:16:49] Speaker 00:
That is not the issue before this court.

[00:16:52] Speaker 00:
Rather, the District Court properly granted summary judgment to defendant because plaintiffs failed to offer expert testimony that the provider whose care was at issue, Nurse Markey,

[00:17:03] Speaker 00:
violated the standard of care applicable to a registered nurse board certified in psychiatric and mental health nursing.

[00:17:09] Speaker 03:
Well, the district court found there was tribal issue as to one.

[00:17:12] Speaker 00:
Correct.

[00:17:13] Speaker 03:
All right.

[00:17:13] Speaker 03:
So I want to focus on a different one where I have a problem with what the district court did.

[00:17:18] Speaker 03:
So I'm looking at SCR 85 and the issue was the testimony.

[00:17:22] Speaker 03:
The standard of care requires that a suicide risk assessment be performed for every patient at every appointment.

[00:17:28] Speaker 03:
And then there was a question at the depot.

[00:17:31] Speaker 03:
Where does that derive from?

[00:17:33] Speaker 03:
And the answer is the American Psychiatric Nurses Association.

[00:17:38] Speaker 03:
And then the question is essentially, well, does the American Psychiatric Nurses Association Fairly Red say that that's a requirement or a best practice?

[00:17:47] Speaker 03:
And the answer is best practice.

[00:17:49] Speaker 03:
So to me, that doesn't cut against her testimony that it's part of the standard of care.

[00:17:55] Speaker 03:
I mean, I'm not familiar with the American Psychiatric Nurses Associations.

[00:17:59] Speaker 03:
But I am familiar, for example, with the American Psychiatric Association.

[00:18:03] Speaker 03:
And if somebody were to say, was it below the standard of care?

[00:18:09] Speaker 03:
Yes.

[00:18:09] Speaker 03:
Where did that derive from?

[00:18:10] Speaker 03:
It derives from the DSM-5.

[00:18:13] Speaker 03:
And in the DSM-5, is it part of the standard of care?

[00:18:15] Speaker 03:
No.

[00:18:16] Speaker 03:
What does that matter?

[00:18:17] Speaker 03:
If it's derived from something, why would it matter whether or not

[00:18:23] Speaker 03:
what it's derived from describes it as a standard of care, because she testified it's a violation of the standard of care.

[00:18:30] Speaker 03:
And the question was, where does that derive from?

[00:18:33] Speaker 03:
And that's what the district court relied on.

[00:18:35] Speaker 03:
And I don't see that as correct.

[00:18:37] Speaker 03:
Why am I wrong?

[00:18:39] Speaker 00:
Well, I think that Nurse Putschker's testimony was equivocal in many respects.

[00:18:43] Speaker 00:
And so she did initially testify that the standard of care required the suicide risk assessment be performed.

[00:18:51] Speaker 00:
as you correctly note, I asked her where that standard drives from because much of what she testified to was really in effect her personal practice.

[00:18:59] Speaker 00:
And so she identified the American Psychiatric Nurses Association as where that standard drives from.

[00:19:05] Speaker 00:
But when pressed on it, she said, she admitted that that was not a standard, that was not something that the American Psychiatric Nurses Association requires.

[00:19:14] Speaker 02:
It's something that they- Was this whole discussion about the risk assessment

[00:19:22] Speaker 02:
I'm sorry.

[00:19:23] Speaker 02:
Was this all in a discussion about the risk assessment requirement?

[00:19:26] Speaker 02:
Yes.

[00:19:27] Speaker 02:
So, are you contesting whether there was at least a tribal issue of fact on the risk assessment, which is what the District Court found, right?

[00:19:39] Speaker 00:
We believe that the District Court correctly found

[00:19:42] Speaker 00:
that they plaintiffs failed to introduce evidence that performing the suicide risk assessment was a breach of the standard of care because the nurse put your testimony was the standard of care does not require it.

[00:19:55] Speaker 00:
It is a best practice outlined by the American psychiatric nurses association.

[00:20:00] Speaker 03:
Okay.

[00:20:00] Speaker 03:
Why don't you hypothetically assume that we might decide the district court was wrong on that?

[00:20:06] Speaker 03:
Um, why wouldn't that, um,

[00:20:09] Speaker 03:
then get to the jury on the issue of causation.

[00:20:13] Speaker 00:
Well, even if the suicide risk assessment had been performed in, and I don't concede that it was not performed.

[00:20:22] Speaker 00:
Nurse Markey, in her interaction with Mr. Hager and her review of the medical records, noted the things that would have been taken into consideration in a suicide risk assessment.

[00:20:34] Speaker 00:
She didn't chart necessarily in the way that outlines

[00:20:37] Speaker 00:
to take the suicide risk?

[00:20:39] Speaker 02:
Well, somebody says that he isn't sleeping and that he essentially can't function when his family's away for two weeks.

[00:20:51] Speaker 02:
It's not terribly useful to set a psychiatrist appointment in a month.

[00:20:56] Speaker 02:
And it does appear that she was at least not paying close attention to what he was saying.

[00:21:02] Speaker 00:
Well, I think, Your Honor, if you look back, and plaintiffs raised this below,

[00:21:06] Speaker 00:
at the.

[00:21:09] Speaker 00:
He's really the only other thing he had slept in jays.

[00:21:12] Speaker 00:
He did say that, but I think that one there is a difference between a chronic risk of suicide and an acute risk of suicide.

[00:21:20] Speaker 00:
This is something that was outlined by defendants expert Doctor Berman in his report.

[00:21:25] Speaker 00:
Just because Mr Hager may have had risk factors that elevated his chronic or lifetime risk of suicide does not mean that he was at an acute medium

[00:21:37] Speaker 00:
an intermediate or at high acute risk of suicide on the day that he was seen at the VA.

[00:21:42] Speaker 00:
He was still at a low risk of suicide that day because he had not engaged in any preparatory behaviors.

[00:21:49] Speaker 00:
He did not endorse suicidal ideation.

[00:21:52] Speaker 00:
He didn't have a plan.

[00:21:58] Speaker 00:
He didn't indicate that he had any intent.

[00:22:01] Speaker 00:
And in fact, no separately than nine times during that appointment

[00:22:05] Speaker 00:
he denied that he was suicidal.

[00:22:07] Speaker 02:
But if you look at the appointment that he had at the VA in June of 2013, which is at SCR 213, 213 through 21... Didn't the district court determine that on the mental status assessment, there was a breach of the standard of care, at least, I mean, there was at least a tribal issue affecting that question?

[00:22:34] Speaker 02:
Yes.

[00:22:34] Speaker 02:
But you said before not.

[00:22:36] Speaker 02:
You said the opposite just before.

[00:22:38] Speaker 00:
Well, I'm sorry.

[00:22:41] Speaker 00:
There are two different assessments at issue.

[00:22:43] Speaker 00:
The mental status assessment, which looks at whether Mr. Hager is oriented to time and place.

[00:22:50] Speaker 00:
Is he displaying an appropriate affect?

[00:22:52] Speaker 00:
Does he know the date and who the president is?

[00:22:55] Speaker 00:
That is the mental status assessment.

[00:22:57] Speaker 00:
The suicide risk assessment is a different assessment.

[00:23:01] Speaker 03:
They were presented as two different breaches of the standard of care.

[00:23:04] Speaker 03:
The childhood said one, there's a tribal issue.

[00:23:07] Speaker 03:
The other there isn't correct.

[00:23:10] Speaker 00:
So, going back to the note from June of 2013, where the district court identifies that a suicide risk assessment has been done by the provider at that time, which was.

[00:23:24] Speaker 00:
6 years prior to when Mr. Hager presented in 2019.

[00:23:29] Speaker 00:
Despite the fact that he at that point,

[00:23:33] Speaker 00:
Had perhaps more factors that were indicative of a suicide risk.

[00:23:37] Speaker 00:
He was assessed to be at low risk of suicide.

[00:23:40] Speaker 00:
This is at 219 desire or capacity alone in frequent low intensity, vague suicidal ideation exists, but there is no subjective or objective evidence of intent or plan and a willingness to engage in treatment.

[00:23:54] Speaker 00:
And I think that if.

[00:23:56] Speaker 00:
Taken as a whole, there is nothing about Mr. Hager's presentation in 2019 that is fundamentally different, such that even if the court were to find that it was a breach of the standard of care, not to have documented a suicide risk assessment, that the suicide risk assessment in 2019 would have come out any differently than the suicide risk assessment in 2013.

[00:24:22] Speaker 01:
Maybe it's not a very good risk assessment.

[00:24:25] Speaker 01:
That is to say, it seems to me that the nurse, Nurse Markey, was in fact concerned about his suicide risk because she asked about guns and she talked to him about his situation and going home.

[00:24:43] Speaker 01:
He's a troubled man and maybe he's saying these things to please her rather than

[00:24:52] Speaker 01:
I mean, I'm just thinking, isn't this a jury question of whether or not she had concern about his immediate risk or acute risk of suicide by the way she spoke to him and advised him.

[00:25:10] Speaker 00:
I don't think so, Your Honor, because if you look at her declaration, she is an experienced mental health nurse.

[00:25:15] Speaker 00:
She says, I have certainly had occasion in the past where somebody is telling me, no, I am not suicidal.

[00:25:21] Speaker 00:
No, I don't have these feelings.

[00:25:23] Speaker 00:
No, I don't have a plan.

[00:25:25] Speaker 00:
And I just don't believe them.

[00:25:26] Speaker 00:
I am picking up something underneath the surface that is telling me that this person is at risk.

[00:25:31] Speaker 00:
And she did not have that with Mr. Hager.

[00:25:33] Speaker 02:
As Judge Bennett requested, suppose we disagreed with all that.

[00:25:38] Speaker 02:
What about the causation issue?

[00:25:41] Speaker 00:
So you can't divorce causation from the breaches of the standard of care.

[00:25:47] Speaker 00:
And so as to the, well, Nurse Putschers initially outlined many possible breaches of the standard of care, and when pushed, was unable to say that those were breaches.

[00:26:00] Speaker 00:
And I think it's important to note that even Nurse Putschers admits that based on what is in the record,

[00:26:08] Speaker 00:
is no reason to believe that he was at anything other than a low risk of suicide.

[00:26:12] Speaker 00:
But assuming that Nurse Markey breached the standard of care by not conducting the mental status assessment, time, place, that sort of thing, there's no indication that that breach caused Mr. Hagar's suicide.

[00:26:27] Speaker 00:
Similarly, even with the suicide risk assessment, I think that the evidence, the unrefuted evidence really in the record,

[00:26:37] Speaker 00:
indicates that even if that had been done, there is no evidence that his suicide risk would have been established to be anything other than low.

[00:26:48] Speaker 02:
What is mystifying me is it seems to me that the hardest part of this case for the plaintiff to get over is the fact that he actually committed suicide the next day.

[00:27:03] Speaker 02:
the causation has to establish that if the suicide risk assessment had been done, that something would have been different in that time period.

[00:27:12] Speaker 00:
And that's true, Your Honor.

[00:27:13] Speaker 00:
And I think that they can't get there because even their own expert says that, well, he should have been referred to someone within hours or days.

[00:27:23] Speaker 00:
And so,

[00:27:25] Speaker 00:
There is nothing in the record to indicate that Mr. Hagar was in need of immediate hospitalization, that he could not be trusted to take care of himself, that he didn't understand what was going on.

[00:27:37] Speaker 00:
In fact, he was seen by his mother and stepfather for several hours later that evening and they perceived no change in his behavior or his mental health.

[00:27:46] Speaker 00:
They had no concerns about him at that time.

[00:27:49] Speaker 00:
And so if a plaintiff's causation expert says that

[00:27:54] Speaker 00:
He should have been seen within days of this appointment or an appointment should have been set.

[00:28:00] Speaker 00:
Sooner than 30 days out, but that doesn't get them over the hump of the fact that Mr Hager committed suicide shortly after this appointment really to the shock of everyone.

[00:28:10] Speaker 03:
I mean, but wouldn't it be a jury question?

[00:28:13] Speaker 03:
For example, if, um.

[00:28:17] Speaker 03:
Doing the suicide risk assessment would have required somebody else be consulted.

[00:28:23] Speaker 03:
And even if they had said to him, you know, we have a concern, Mr. Hager, you're going to see somebody in two days.

[00:28:31] Speaker 03:
We have a concern.

[00:28:32] Speaker 03:
Wouldn't it be a jury question as to whether or not that extra level of concern expressed to him, even if it wasn't going to be that day, might have been a substantial factor, which is the Arizona test, as I understand it.

[00:28:47] Speaker 03:
in causing the harm.

[00:28:50] Speaker 00:
Are you referring to the loss of chance, or are you referring to a substantial factor?

[00:28:55] Speaker 03:
Substantial factor.

[00:28:56] Speaker 03:
Just that he would have been told you're going to be seeing somebody in a couple of days.

[00:29:02] Speaker 03:
We have a concern, but you're going to see somebody in a couple of days because we have a concern.

[00:29:08] Speaker 03:
Isn't there tribal, aren't there facts that could suggest to a jury that if he had been told that,

[00:29:15] Speaker 03:
that that might have caused him not to kill himself, and thus it was a substantial factor that he wasn't?

[00:29:21] Speaker 00:
No, Your Honor, I don't believe that that is accurate.

[00:29:24] Speaker 00:
Mr. Higger was offered resources at the Veterans Center.

[00:29:30] Speaker 00:
He said that he intended to go the following day and follow up with counselors there, and yet he still committed suicide at some point in the following 24 hours.

[00:29:40] Speaker 00:
And so I don't believe that there is any evidence

[00:29:44] Speaker 00:
Disputed evidence in the record that would suggest that if he had been told that it somehow would have.

[00:29:50] Speaker 00:
Stopped him from committing suicide, or that it would have decreased the chance of his having committed suicide.

[00:30:00] Speaker 00:
If your honors have no further questions.

[00:30:03] Speaker 00:
We ask that the district court's decision on summary judgment be affirmed.

[00:30:07] Speaker 03:
All right.

[00:30:07] Speaker 03:
Thank you.

[00:30:07] Speaker 03:
Council.

[00:30:08] Speaker 03:
We'll give you 2 minutes for rebuttal.

[00:30:10] Speaker 04:
Thank you.

[00:30:10] Speaker 04:
Judge.

[00:30:12] Speaker 04:
I'd like to follow up on your honor's last line of questioning.

[00:30:16] Speaker 04:
Because what he was told was, he said, I need to see someone today.

[00:30:20] Speaker 02:
Did he say that?

[00:30:21] Speaker 04:
Yeah, he said, I want to talk to someone today.

[00:30:23] Speaker 04:
That's in the record.

[00:30:24] Speaker 04:
I mean, Nurse Markey wrote that down.

[00:30:28] Speaker 04:
And what he was told was, no, not today.

[00:30:31] Speaker 04:
But here's someone else you can talk to.

[00:30:36] Speaker 04:
That's not answering the cry for help.

[00:30:38] Speaker 04:
And that's the jury question.

[00:30:40] Speaker 04:
And I think your honor hit it on the head.

[00:30:42] Speaker 04:
I just wanted to explain a little further.

[00:30:47] Speaker 04:
We know, well, there is evidence that there was, the assessment was improperly performed and mistaken, the assessment that was done was improperly performed.

[00:31:01] Speaker 04:
We don't have the entirety of the assessment and it's not recorded, so we can't guess as to what was done, but it's very likely if the full assessment had been done, that's the point.

[00:31:11] Speaker 04:
It would have shown other factors that would have got him in.

[00:31:17] Speaker 04:
And this is a question.

[00:31:19] Speaker 04:
It's in the transcripts of Neur's Putsch course.

[00:31:25] Speaker 04:
I mean, more than once, she said there was enough here to see a higher level person.

[00:31:32] Speaker 04:
SCR87, she says there's a concern about safety and outside the scope and standard practices of a registered nurse.

[00:31:40] Speaker 04:
Same page, there were risk factors and warning signs that she should have communicated to someone.

[00:31:47] Speaker 04:
These are jury questions.

[00:31:49] Speaker 04:
And if he had been told, you will see someone within hours, or as your honor points out, if he was told, you know, we can't get you in for 48 hours, but let's walk through this till you can see a higher level provider, that's answering the cry for help.

[00:32:06] Speaker 04:
And at a minimum, it's a jury question.

[00:32:09] Speaker 04:
I thank you, counsel.

[00:32:10] Speaker 03:
We thank both counsel for their arguments and the case just argued will be submitted.