only claim in this case are you saying that if you have that it would be arguing something other than health seven discus action if we disagree with you about management that it seems like what we have before us is the title that is you and whether he is an employee if you have any argument that you should win on that issue your what is your best argument that on the summary judgment record that was before the district court that your client was an employee with respect to that issue employee or an independent contractor should have gone to the jury or is that a legal question that needs to be decided by the judge or certainly if interest a fact that that could go case well but but the problem with that argument it seems to me is that's always true on and on an employee versus an independent contractor analysis because you're up i mean the whole point is you have different factors you have to weigh and if there's if those different factors i mean you have to show it to spew of the material fact and then send that to judge the jury and then the judge i just i've always seen this is a legal question that a judge decides so i don't understand the argument exactly that that you would i'm not sure what you would ever send to a jury to decide whether it's an employee versus an independent can contract in many cases that indeed  see that in a lot of these cases and i'm always confused by you know an independent contractor that comes in and never receives it up to and then all of sudden fifteen years later claims he was an employee and i think why do you have a race that sounds like that's not necessarily motion to amend or the stuff lead to supplement i'm happy to answer them but i feel like it's been adequately briefed and i like to point out a few things about the right to control d and the position hostile contact by the clerks order before this hearing in the hospital position contacts the rights of control it's more enlightening as is said and still a check to analyze the control involved and when the doctor performs the services the number of hours and the ministry the details it's given to the professional services and d here when you look at all the cases in the sr circuits analyzing this issue and consistent with murray in the th circuit they look at the freedoms that are not typically enjoyed by better not typically enjoyed by employees where they focus on the formal terms governing the physician hospital ship they look to whether the physician contracts freely with other hospitals or works for himself here  that he it was a private physician with a private practice who had an independent question from a medical determination that time as to whether it does this question ever go to the jury i just have this view that independent contractor versus employee is always a question for the judge and this come up in a couple of cases where you know that it seems like there's always going to be a factual dispute on to what degree you know control is exercise and so if we adopt that them we're always sending it to the jury what it is or what's the rule on this there's now also and i think you're right that it is an issue of law and the courts have determined that now the sorrowing case there can be a genuine issue of material fact i believe judge nelson in limited circumstances and the solomon case with that very limited circumstance where there was a genuine issue of fact that's of a degree of control here there are no disputed d facts so the question becomes as a matter of law  henry an independent contractor or an employee but in solomon there was a genuine issue of material fact because solomon was alleging that there was a pattern of continuous minor change over the practice which was because i'm one of the that seems to fit exactly what's being argued here well your honor before i shoot myself in the foot on that one i'd like to clarify my point there this is this is far afield from solomon this case and that was pointed out by s privileges d ceased and then a juror because of the peer review and then let after his privileges ceased and recommend they it was made by the m e c and when you look at that when you look at the evidence in the record there's nothing that indicates that review went past concerns over the standard of care so it's nothing like solemn in that sense but the bottom line is apparently what you're what you're arguing here is whatever we hear as far as evidence put forward by henry you're you're not contesting that and the same we totally agree with that that's exactly that's exactly the control so the only debate here is does that evidence reach the control threshold as a legal matter to become an employ that's exactly right judge nelson there's a spectrum and when there's no doubt undisputed facts then it's up for the court decide is it where does it  suppose that you did dispute it wouldn't you still just take the plaintiff's facts in the light most favorable to the plaintive if you know it and then still say well that you know we're going to consider that and that either hits the legal threshold or it doesn't mean just because there were disputed fact you know i guess you have to still show that it was material that chris so i defend and maybe that's maybe that's the way to distinguish the nd circuit case is that the pla version might have said he was an employee but the defendant's version would have said he wasn't and so then you had to send maybe that's the way i agree with that your honor and in this case there is no dispute of material fact the courts and still a check in the four circuit and all the court cases that followed including solomon have recognized that the control that a hospital has over its departments or its positions are immaterial facts they do not really move the saying in that context this doctor had the freedom that in and for he doesn't enjoy and but to go directly to your question is yes that's the way i would say it is there is no dispute of material facts and stepping all the undisputed facts impression it was far less than that but maybe i'm just not understanding what the forty percent or one th refers to what is your understanding of summary judged record as to how much money he received for his services i remember telling me income as the record shows as one thousand and ninety nine income cell right and so on this this and when they look at that they're saying well who is compensating you for your services and it's an undisputed fact that the hospital did not compensate him for any of this elective procedures and did not come sooner for any of us professional services they only compensating him the same flat rate that was an issue in alexander and all the on call cases which was five hundred dollars for each of the  and less to court as on the other questions i will just say that well i do want to i actually i do want to ask about that amended complaint what i guess i need i can just go back and look at it but what was the additional claim i  true it was made to me to one claim is that what it was after after that that's correct and among some other claims and dr henry is actually now filed those claims and an independent action that stayed currently pending this hearing  t i so i so don't know the reason for us i mean does that moot this out because he's already filed those because well it would be a reason to send it back down to amend it you know if he's already filed those in a separate claim but yeah i think that's a question for them i mean if there's some claim splitting concerns here but the key point in terms of the motion or man it was supposed judgment motion or managed treated with greater skepticism and there was no grounds for setting aside