represent army health plan of illinois ok just a couple of housekeeping items the microphones here are for recording purposes not amplification so keep your voice off and we usually go fifty minutes per side to save some time i just try to keep the memory ok thank you very much please proceed morning honors and as i said i'm brian williams  was that she found a change in circumstances that i know the well you're relying on the say ministry purposes but isn't that a stretch and i don't think so your honor i think that expect him to go back and start over from the very beginning i mean isn't it really just a case of you should have a civil case against them no i don't doubt now go back to the very beginning want to go back and have a hearing on wasn't done this was an immediate that this is not that that they were and i took the immediate action for a violation of both state and federal law well that's that's in dispute and we never got a chance to prove that that that's not correct we never got a chance in the in  terminated it and if we get the right to have a hearing we're going to you know what i'm really thinking is your client is you might say liking to spend money i'll feel a lot i am not exactly sure what your honor means but we believe that if we go back and we get a chance to prove our case that the pulling injunction stage will show that the contract was not terminated properly and it should be kept in place and that's one of the purposes that an injunction can serve to keep the contract in place to maintain the status quo which is a look at the patients back they could get the patients back that's correct your honor they could get the patients back very simply in this case within days after this notice of termination having those those patients back if you were if your client was entitle to it well the problem is even if you find that there was a wrongful termination although the patients are gone and that contract is gone i don't think  ultimately it's been a year and a half and we have not been able to get our patients back through other means so if you wait until the very end we're going to talk about two years of this going on the damage to our reputation he talked about in your brief several times over that that in most cases if not in any case i don't know if it's the same doctors are treating the patients and the only difference is that a different entity is f the treatment of those patients by those same doctors so i am in a loss to understand how the i'm going relationship with those doctors is somehow in jeopardy if those doctors are continuing to treat the same patients dr khurana is not perfect managed care is not treating those patients it's the post it was dr khurana me presumably she would keep her patients right managed care plan of harmony and harmony said no now you're with different doctors and they transferred them to cash and say different doctors i should say different ip days and the doctors that worked with cut dr crowning many doctors are multiple i p s so you can transfer patients to a doctor who's in a different game but dr khurana didn't get any of those patients they were all taken from her she didn't gamble and p m c didn't get any of what really h causes for damages to a reputation that's part of it and that's part of it is that the loss of these patient relationships is the loss of the compensation that she was getting out of the contract that she had from servicing those those patients she didn't have any ability with no notice she had no chance to try and find a new contract to replace the one that they had with army so she was damaged in many ways as was pm sait and we think that in order to have for the court to effectively denied the motion for plum erin junction the court should have at least heard it when there was the t r o was held the judge found that we had satisfied at least at that stage two with the  and you rely on that mr williams and it seems to me that isn't that what the judge was referring to when she said the circumstances have changed i mean that's not written in stone those determinations  the procedural history and the nature of the dispute over a period of months occasioned it at least in part by your client's unfortunate illness seems to be implicit in your argument that the determination months and months later having learned more about the circumstances of the dispute no i understand your i totally agree it's not written in stone but from the time that decision was ma until that motion for poor injunction was struck and there was nothing really new in front of the court discovery was going on but it hadn't been completed and i don't think that you know what i interpreted the court saying that there had been a change in circumstance where as per the apps that these patients had been transferred but i don't think that that's actually a change in circumstances because as was argued that the arrow at the very beginning khurana was sick for a very long period of time and she was hospitalized she was oxygen dependent we did the best we could with discovery and there are all kinds of discovery objections going back and forth between both sides and depositions disagreed with us but the point that we're trying to make is the judge effectively decided this without hearing the merits of it kyra you know the question that the argument because look at the  destroyed and i'm curious given that argument why a preliminary injunction would be unnecessary sure as opposed opportunity or she would have had the opportunity to find a contract with another managed care provider at the time of the terminations dr cronon p m c were exclusively providing the medicare services through harmony if they would have been given ninety days notice they would have had the opportunity one to tell their patients look in ninety days but there's often a lot of water under the bridge since that i mean we're talking about here is the irreparable harm what you're saying in the record in front of the judge below is that you know it's the business has been run and part of that is because there is a lot of delay up until that point in time according to what you're saying but then now you have all this time you spent an appeal and if the relief the request here is tonight what's your next step well we've been continuing in the lower courts since the appeal was filed and eventually the case is going to go to trial but i don't think that the purpose of equitable relief the very purpose of it is that you can get relief before you have to wait for trial and that's what we were denied that opportunity to get there really before having to wait all the way to trial and as it stands right now they're getting contracts is difficult because we have this accusation out there that we did all this wrongful conduct and the contracts been terminated and that's a damage that is difficult to overcome and it's a measurable in terms of money damages which i just i'll speak for myself i just don't see where the equitable relief is now that's going to do any good we're going to get if we go back and we when we get the contract reinstated we have an opportunity then and we know of even if it's reinstated even if you're right within ninety days for no cause of all right it'll be terminated that's correct that's correct they will have ninety days notice to confer with their patients and let them know there's going to be a change and to get a contract with another provider to write services and then those patients those fifteen thousand patients that were taken from us will have the opportunity to decide if they want dr to khurana to keep treating them what prevents you from  have this hanging over our heads that we were terminated from this route by wrongful conduct and that our reputations have been damage and people are not willing are there they're hesitant to contract because something of this taking over your head you're the one who filed the appeal you should be in seeking damages now for the reputation that that's the that it's what i think the three of us can't figure out why you're here instead of there where we are in both places your honor and we have  been pursuing the case and the trial court in fact we are in front of the judge novak yesterday and we are pursuing it here because we think we were wrongfully deprived of an opportunity to get inju look let me just say that the other aspect of it that we've we haven't addressed yet is that given the opinion that the judge evidence in saying that the circumstances have changed in which he struck your preliminary injunction complaint without a hearing that is if a pretty crystal clear indication of how she would view the preliminary injunction because of those changed circumstances that she observed should have gone forward and i understand you said we didn't get a chance to try to dissuade iran that but under these circumstances where she was pretty fully apprised of what she thought change the circumstances and given the fact that this type of injunctive book relief is something in which we bowed to the discretion of the  judge pretty clearly i mean you're dealing with the abuse of discretion standard on appeal what makes you think that this would be anything other than a waste of everyone's time and money well i first i think mr ma meet the standards for it and the only thing that we have really here is as i see the change in circumstances and i think that was a little bit of a red herring because as i said if the court was referring to the transfer of the patients that was in an have to be considered who are almost outweighed any benefit or concern for your actors because they're more work fine and so because of the number zero and you can't you're dealing with a lot of older people the only be confused and not know what's going on so you're creating a new which by doing what you're doing well i respectfully disagree   the merits because given the nature of the report from the former employee just achille out to the entity which apparently for a period of years had been quite satisfied with the i p a that was run by your client they seem to have taken although i found out about it only in the in the report of the response brief they seem to have taken a number of steps to actually investigate in turn it over to potential law enforcement investigating authorities so for a question of contract interpretation does there need to be any dykeman or indeed a conviction under the  under the contract for v harmony's health plan should be entitled to do the immediate terminations of the contract or does the nature of the report from to do an investigation does this that it is that enough to trigger the entire movement to the terminations before there is a decision about whether to indict and whether to prosecute or i think first of all  vaccine program and the state didn't take any action before there was any terminations contract required harmony to have reasonable discretion and we don't think you can satisfy this standard without even discussing once for one second the people you are accusing of what happened they have someone come in a disgruntled a point down ploy and said they were doing this then the other thing now one phone call the p m c now one discussion with d days have these obligations to report what they say may be suspect that they do that and then they terminate before they are you know the flip side of that is you're part of your argument in the briefs is that there was a gap of time between the report  investigate and you you you criticize him for the gap of time and on the other hand that investigation shows more than just hearing the words come out of the mouth of the in continuing our relationship with our patients and that's gone and we can't get money damages to correct those things those things are immeasurable and as the trial court found in a three hour all which i know was not written in stone your honor that there was irreparable harm that we had made enough of a showing at that point so i don't think that money damages is the answer and that's why we're seeking this injunctive relief now this invest  that we've had an opportunity we have an opportunity for this injunctive relief and maybe the court would have denied it i don't know i think we could have prevailed i think we were half way there and the court thought it was necessary at the time of the t injunction hearing to see if these other things could be satisfied and i don't know what the change in circumstances where other than this passage of time but that didn't stop the fact that we had this ongoing immediate damage  was destroying our business that is the strong our business that can't be remedied by money damages so the fact that there was no legal impediment to having this it wasn't a case where you know and the judge just skipping over that for reasons of administrative reasons or judicial economy or whatever may be deprived of as of a right that we had and we think that was an abuse of discretion and we think the case should be reversed and remanded  seeking damages for that alleged breach we've now closed discovering the lower court and next week will be setting i'm sorry in the one nine hundred twenty setting a trial they most likely so that's where we are right now now before i get into the points i counsel just which i'll just mark i want to kind managed care organizations so contracts with the state and federal governments to manage the health care and the delivery of health care for the elderly and indigent as us as a state and federal contracted n c o it's a steward of federal money and it contracts with providers such as primary care physicians primary care doctors and hospitals it also contracts with and cities like perfect managed care which is independent practice association or i say that itself those i p have networks of contracts so we have as a context of a basically a contractual well between harmony the i p a's and the providers themselves now this case all rows as you guys are aware when a whistleblower a former employe perfect managed care came to harmony unsolicited and said there's certain illegal conduct going on including the legal lists listing patients which gets perfect managed care additional money from harmony and and then the state as well and then also falsify medical decision so here we stand in the in the lower court and we moved to strike the plymouth injunction or not for months past now the question obviously is did the court trial court of use its discretion but you're not really suggesting that they're claiming now is reparable harm if that was the case they could have come in on the appeal of the t r o i'm not saying comp lock you have to you have to appeal to your own in those instances is that the case what we have here is the question of whether the judge abused its discretion and the court really  two things it did make a determination that proceeding on a p i hearing would be inefficient and it would result in actual prejudice to the parties of duplicating discovery to paying the costs associated with sky every and to paying the costs associated with the t r o i mean  injunction hearing and then a hearing on the merits so what the court said is it's more efficient because we are so far along in a straight to straight that what it also dead and the records clear the judge said i am operating under the standards of its role and i am finding that there aren't certain elements based on the record before me that can be met so assuming whatever the plain to say is true assuming that they can even prove of that appeal hearing we don't need to get there and that's what the cases support  completely within the judge's discretion and we've cited two cases that go directly to this point the first is waste management the second is northrup both of those cases the court said we don't need to get to a p r hearing a full blown hearing in this case that would be a waste of time i can tell on the record before me that there is no basis for a permanent injunction and even a waste management the court said i've reviewed the affidavits and allegations and exhibits and nothing warrants a hearing i just don't think that a plumber injunction hearing the hearing is going to accomplish anything that's exactly what the trial court did in this case in fact the cases that the plaintiffs say support our position as well particularly the mosse m a s for cisco associates and the moss mcdonald versus mosque case in the mosque case particularly the court actually struck before a hearing that's not disputing what it sounds like they're trying to say is that she just didn't really get the elements she didn't make a decision well she did do it for efficiency purposes but she also did operate under those circumstances under those elements for a glimmer injunction and one of the things she said very clearly and you guys have all hit on it is that the circumstances has changed and that goes the idea that you cannot restore the stat i'm sorry you cannot maintain the status bring all those patients back to perfect managed care not just on paper but physically people would be stripped away from the primary care physicians that they're seen now and that would completely and as the court said was confusion and a people those were her words that would be inappropriate under this plenary context instead what ship what the judge appropriately said is let's get to the merits and a final hearing instead of playing shuffleboard with these patients so the judge certainly properly exercised her discretion in said how can we in that case restore the parties on a plumber injunction what happened was is that a party a contractor to buy a dealership the dealership was a buick dealership g m block the deal quo that's exactly what we have here we can't just go back to the beginning we can't just reset magically what we can do is go to trial on the merits and the plaintiffs can pursue their claim for damages related to that the court also didn't found that again operating on the standards for plimer injunction that there would not be they cannot show irreparable harm and that no emergency situation existed and that's really simple the law us that is very clear that it has to be an emergency situation in our case we had by the point that that hearing came around after that this is very important they never requested a new hearing not even to the date that we move to strike the plumber injunction motion they never requested a new hearing the court said you can refile a plumber and john motions if you choose granted there has to be better facts well discovery's complete now and we still don't have a clear injunction motion that was filed so the court appropriately found that there was no bases under both the reparable harm standard and  changing the status quo that is not abuse of discretion and finally as justice fitzgerald smith pointed out the balance of the equities in this case the that the paramount concern is the patients and the judge knew that and consider that in balance and yet what is on employment injunction and said i'm not going to move these patients back and forth under under no circumstances is that something that i want to do in favor of effectively just putting them  back and appeasing the plaintiff's concern for this so all in all the judge did not abuse its discretion it has the authority to strike a plumber injunction motion prior to a hearing that's not even disputed by the plaintiffs and in doing that that didn't happen there was no finding that there was no your reparable harm and there was no finding that there were people with the patients that was discussed and we allay that concern saying thirteen thousand at least of these patients are to stay with their same doctors it's a paper transaction they send out a letter say you're here or you're here it doesn't affect the patient so yes they are the primary concern but that is not something that's going to be disrupted if we are gra relief we seek here talking about these changing circumstances and the record that the judge made this decision on as first of all it wasn't made on the merits so it's not clear what record there was but at the time that the decision was made written discovery was still going on half a deposition had been taken so it wasn't as if the court reviewed a full record and said ok on now they don't meet the standards that's not what happened it was simply well we think i think there's been some change in circumstances so let's go to trial it wasn't as if there had been some significant change in the record or some record before the court that the change that made it necessary to deny this motion without a hearing on a plane or injunction would give us our patience back and would give us a chance to restore our reputation give us a chance to get a new contract without  having this smear on our reputation and we think that we were at least entitled to a chance to do that and just to say well you know we're too far along there may have to be additional discovery obviously have the discretion to decide anything issue that comes before them but not just say i'm not going to decide the issue and i think that that's a difference in that the judge did say that even if you go to trial you still may be entitled to  and we're saying we need to get it sooner rather than later and that's why we should have the hearing and that's why the court abuses discretion in marketing staff attorney to have it thank you thank you we'll take it under advisement and