me please the court my name is elizabeth i represent the appellants and i'm asking this court to set a precedent to protect patients rights in particular to protect patients and  injunction which would make the cerner maintain the records through the accessibility to the medical records system through the determination of the case can you make it clear to us whether you did or did not get that relief from the district court we did not get a proper injunction that the district court nominally denied the injunction at the same time the district court instructed cerner not to turn this is jim off and to keep it on so he orally granted what you wanted it after after you got the oral grant of an injunction and the written denial which seemed to create and then consistency you go back to the district judge and say judge reason to go to him quickly and say are you giving it to us or not we didn't do you know your honor would be useful now for us to remain handed to the district court so you could tell us and you whether he is granting or denying the temporary injunction i think that the the record is developed he had a full briefing before him he asked for a hearing that he did not grant and he said he did not want to hear you hear those orally he gave you what you want you need a hearing to do you want all you had to do was ask him to help but we asked what we wanted and we had asked in the papers was a proper order under rule sixty five because in this case there are third party service providers that provide for example the prescription writing feature of the medical records software and we need an order that is binding under rule sixty five on those third parties and it's it's not clear and mean was it wasn't clear to us because he didn't make the court also did not make the requisite findings to support the order when he told the he called it an instruction when he told cerner to keep the records on that he didn't make the findings for example of irreparable harm the likelihood of success on the merits balance of the hardships and in the public interest the judge mean none of those findings in the written opinion that followed am i right that the only  showing in the record of the likelihood of irreparable harm was a five day interference in october twenty sixth seen with service that was then rectified and a brief interruption in january of twenty seven team which is now well over a year and a half ago in the interim or is there anything further in the in the record what prompted the motion it did the interruption in october twenty sixth started the case and we had a hearing on a tear out at which point center agreed to keep the service on for a ten day period and then they never entered into an agreement or any kind of consent order to keep the service on during the rest of the case what prompted us to move for the preliminary injunction was they would not reach an agreement with us to keep the service on for the rest of the case and they moved in they were moving in the district court dismiss any relief for any were junk injunctive relief in the case so they were trying to change the status quo that's what prompted this motion was nothing nothing more than that and what and where where do things stand with regard to the contract dispute that the underlying lawsuit that the second lawsuit that was served on the defendants is still pending and you are seeking damages are you still using them as a service provider for billing and prescriptions and medical records management so i am not we have not been using them as a service provider for billing we have not been able to move to another service provider for the medical records i was looking at this pendency of the motion dismissed the system should remain oh is that what you want  line that the grant is unsupport in concert with the center also can't do certain things right we know why isn't that kind of why isn't that obvious what have you done to make sure that their own way of the existence of this looks like temporary state we don't know while the business partners are or what parts of the software they control there are some providers that we have an idea who they are but we have not had petty i think being at the hearing i mean judge said he didn't want he didn't want to enter the injunction he didn't want to hear any more about it he didn't want to hold hold a hearing on it and he issued that may please the court judge broderick found no reparable harm he did find that in the record there is no actual imminent threat there is no threatened injury there is no continuing harm which are all requirements for issuance you understand that he said he's going to continue the even to keep you from turning it off during the lawsuit what i understand is judge broderick indicated that we were not to turn it off during the pendency of the motion to dismiss which he ordered before the on point he said motion to dismiss the one point he said the case during the pendency of the case that's on a one sixty four and he said  that he did and then he corrected himself on i believe that's a one sixty nine although i do not have it right in front of me thinks that's a correction or he just said it differently on two occasions you know there was a lengthy discussion in that time period about what type of case it was and why couldn't dr phone schwartz go to an alternative service provider than a no but do you did he mean keeping keeping you keeping the system on pending the motion to dismiss or pending the case it might take away from the transcript is that his alternate conclusion was don't turn it off during the pendency of the motion to dismiss he said that one point yes the point he said pending the case so that if he denies the motion to dismiss you hunter stand you are barred by his oral ruling at least during the pendency of the case your honor i'm going to go to judge broderick if we lose the motion to dismiss and get clarification i would never my client would never supposed to turn off a solution in the midst of a federal lawsuit in the southern district of new york with a federal judge has issued an order whether clear or not as to what we should do you are in favor of getting clarification i'm in favor of us not turning anything off until we get clarification but that does not in my opinion mean there is a de facto preliminary injunction right now it means we need to tread carefully we don't want to risk contempt we don't want to do anything that would be what is it you think you can do i'm putting adversaries words in your mouth but what is it that you think he's worried about you're doing people at the concert i don't want to speak out of  think what we're in the midst of here's the if you were you are in your two plus of her client not paying her bill and she has an electronic medical record solution and she's using it free of charge we've offered alternatives the court has offered alternatives including creating an escrow account no one has ever taken anyone up on that we do not intend to ever place a client in a situation where it is going to have an inability to get its medical records and whatever happened in october of two thousand and sixteen is an issue that will be addressed in the district court however what we must do is we must have the right to get a business divorce as the contract would allow us and to get the electronic medical records moved to that next provider we currently have doctor function works respectfully as a squatter she will not go get those records into another provider and we can't force her to do that is the contract kind of incorporated into the discussion on your motion to dismiss by virtue of reference to the contractual relationship to the parties well contract between us i'm interested in hearing about what the contractual remedies are because obviously this kind of contract does have implications for patients and not on you know what happens to the patients in the meantime so i'm curious to know what contractual remedies you would point to if those are properly in the record that there's a good question that of the eighteen counts that currently exist  amended complaint seventeen of them are not on breach of contract related so we've moved to dismiss those seventeen the contract action would remain in the case with respect to transition of medical records what would occur is patients always have access dr funke schwartz was supposed to have read only access during that interrupted period in october which would allow his must have what kind of an read only which would mean that she could read records and she could she could determine what needed to be done now whether that was done in fact of lee or not is a question for the lower court that we're dealing with but we always provide clients upon terminations normally the way it's done is it goes to the next provider so we coordinate with the next provider and we get them those  medical records uploaded so that then they can have a hopefully seamless transition however in a situation where there is a situation like this we would have to provide someone with read only access unless and until they decide to transition but there is never an attempt to take away someone's right to access patients right years and there's certainly no imminent threat of that however we interpret judge broderick's ruling so that's that's where we see things that october of twenty sixteen all access was stopped for five days is that right and i'm not so i'm not certain that timeline is exactly accurate i think what happened was that she couldn't get into her system her log in was disrupted for a reason upon receiving information on my side obviously we got that corrected quickly we had a hearing with judge broderick after we were in the process of working through these issues she had access again at that point then there were some issues with respect to ea prescribing which again the new york statute allows a physician to use non electronic medical record solutions if there is a downtime or an interruption so there are accounted for procedures in the law to deal with us but obviously electronic medical records that belong to the patient and those are always transition to the extent possible to that next provider in this instance she has indicated in that court hearing on august fourth she won't go get them transitioned she says it's complex it takes time she can't do it but we're in year two and a half of her not paying your three of her not paying and while that is not a reason for us to terminate her access it is reason for her to move on we have two contracts there's one she has no beef with and that's the one she's not paying there's another one she has a beef with and certainly we can debate that and we can litigate it down in the district court but as far as the imminent threat issue goes there is no imminent irreparable harm it any stage right now in this is that is that correct i would say my understanding is that is that correct you haven't denied that you i have denied that we would seek to terminate the contract and i think that's where that the discrepancy in the relationship is here another one of the discrepancies in the relationship we want to terminate the contract we want out we want cut off her patient record access and that is not by any stretch it's whether judge broader what is said so or not that's not going to happen but the simple fact is is the question of whether she has a right to continue to interact as opposed to simply read the records that's where there's a discrepancy can someone always have a right to use our solutions without paying for them and interact with them versus making sure there's an opportunity for them to see all the electronic medical records and that's that's where the discrepancy is here that's what i said i thought i had said that you will maintain whatever hard access flung sure's has to electronic medical records my only my only clarification was with the second phrase while the litigation remains pending we would reserve the right to go to judge broaddrick and ask him for an order allowing us to get out ok and that's what we meant that's what i mentioned on the record on august fourth two thousand and seventeen judge broderick i might be coming back to you we want to out but that part of it yes i would agree we will do it until he does anything you want out you mean in the lawsuit well i always want to end the lawsuit but we have so we have if your representation is you won't deny her access to the records and in the lawsuit and if you are right that you asked the judge to dismiss the lawsuit and you get that as miss then you're out from under whatever his order is your honor claim we don't want to cut her off until she's transition to another provider we what i'm suggesting is if the lawsuit is pending and we have given her ample time we will give you your records here they are however you want them ok and we're still in this breach of contract action which could go on for two or three more years i would then go to judge broderick and ask judge broderick for an order allowing us to do it we're not going to make any move without getting the court's opinion on it while the litigation remains pending and all you have right now that she has right now that was read only access no she has full access lacked it was restored in october of two thousand and sixteen and to the extent there's an issue with respect to january two thousand and seventeen i believe it's understood that that was not a cerner related issue in fact it was just some outage so she has had full interactive access since october of two thousand and sixteen and you would have  does anything prevent you from going to her and saying you've got two weeks to pick another provider and if you do that we will of course give access to the new provider but we're not going to give access to you unless you transition to a new provider would you be able to do that not consistent with if we were still following the district court's standing order which is not a problem very junction but simply a directive to us and we wouldn't violate a relief changed the other the other issue would that mean what i'm saying is i think mr fanning answered based on a belief that the claims would be dismissed in the motion to dismiss and therefore this won't be an issue anymore and that's just not true even if  contract claim is the only claim this is still an issue she has a contract for them to provide service to find twenty one thousand hour the lab view and he would then be in a position to ask drug brodrick to clarify whatever concerns you them have on his next daughter so that how does that affect the question of whether we want to harm you august twenty seventeen or you've just heard him say what he said in response to just now this question if we're from that order they're not going to and i'm going to move her out as they say right until the disposition of the motion to dismiss at that time you can make all of this available to judge brought up tell him the situation in the court of appeals what the representations were that's why transcripts were created and then you can pursue whatever remaining concerns you have you seems to me your concerns were you know see a logical with respect to the character of the orders well  and you should be watching for is the decision of judge granted on the motion to dismiss right at which point you will know what the situation is they'll still be the contract claim with the with the contract that says she is getting this service through two thousand and nineteen and what he's really asking for and what serves really asking you to do is mandatory injunctive relief he's asking to change the status quo from keeping the system on the only burden to them is something that can easily be compensated with money the record shows service cost six hundred forty dollars a month it can easily be compensated with money and instead we saying if she should now go in transition to another service even though she has this contract even though all the records for the last ten years are in there and even though it's very burdensome for her and patients when when she does that we're saying there's not there's nothing to support mandatory injunctive relief for the defendant in this case they haven't even answered there is no claim for a contract for contract relief for they do not have the right to cut off the service without a transition period do we have the right to terminate it or not enslaved there they made during the hearing before just brought up and which can be fully discussed and clarify budget by just brought upon your request when he is either before he decides