along with my law firm the guid chang langridge's and filer represent the plaintiffs in this case benjamin army in ophelia as well as all other similarly situated persons the district court and remand this case to the trial court for further proceedings because plaintiffs adequately allege claims for negligence bridge of implied contract in unconscionable ity under new mexico  relationship between the relationship between the dependent and the white the defendants are the nation's largest health emergency medical care provider in the country they provide their physicians they're employed physicians as alleged by plaintive provide care of at least seven locations in the state of new mexico and just so it's clear we also allege that the envisioned defendants control the physicians the billing and the revenues and profits from the top down why did you shoot the doctors we didn't see the doctors because the doctors aren't the ones who control billing the ones who do  they are the ones who provide the care on behalf of defendants as defendants employees and then the defendants choose inset the rate at which the bill was sent to the plaint the emergency medical care patients and they do this through their corporate contracts stock ownership and other similar arrangements between themselves and also the local physician entities like a the invision defendants retain the rights to the billing of the physicians for the care that those physicians provide and this is as an example in vision health care who's at the top of the ladder says it's not a health care provider but in the rd quarter of twenty seven team its net revenue from quote physicians services was one billion six hundred and seventy million how can they put the physician in the hospital r like magic know your honor as as recognized by rodriguez versus del sol shopping center associates lp the new mexico's supreme court has adopted section seven of the restatement rd of torts as it relates to duty and negligence claims and in section seven and the bieber statement specifically says that the general rule is that an actor had owes a duty a plaintive if there's a potential risk of harm there's a potential risk of harm when the harm suffered is worse than it would have been otherwise and that's the general rule in order to section seven be the states that in order to find no duty the district court has to specifically articulate policy reasons as to why the general rule should be changed and in this case the district court did not articulate a single policy region why emergency medical care patients who are vulnerable captive in a diminished capacity at the time that they're providing care shouldn't be shouldn't be protected from over does mexico or rick recognize a duty of reasonable care all by medical bill or to a recipient of medical services so the mexican new mexico law recognizes that actor has a general duty of care and that is where the duty arises and actor has a general duty of care that's pretty general if you got anything appeal which adopted the you know sports section seven but to to answer your question more specifically what were the facts in that case do they match up to anything we have here oh no your honor they don't but the wall applies and you answer your question a little bit more specifically as it relates to the duty of these plaintiffs allege that defendants are just a medical billing company pledge that they are essentially vicariously liable i was a employing the physician and i think care there's this is a single transaction the patient comes in seeking emergency medical care there's no negotiations regarding fees no documents exchange regarding fees the patient is provided medical care by the defendant's physicians and then sent in overpricing bill after the fact that the rate that they provide ignores industry standards market data rates paid by major insurance companies and federal governments alleged on page twelve of  state that the class should be limited at this point in time to patients who were billed more than the highest inpatient rate that is the political to the services in the reason why that the nuff at this stage of litigation is because wiring the plaintiffs to allege a more specific price essentially amounts to a denial of the process there's been no discovery and defendants are the ones who have all of this information at this court recognize the web where versus united health care utah incorporated the information relating to pay or raids the amounts that defendants charge on an industry wide basis to paint to patients and things of that nature are highly confidential they are not available to the public and if we were able to get these numbers from defendants the calculation of the damage is very simple the facts of this case are very simple the plaintiffs are part of a population that is vulnerable captive in and is a menace at the time they're provided care they are unable to negotiate because of that and  law recognizes in other situations that emergency medical care patients shouldn't have to inquire regarding him a physician's employer or employer for example at the time they're seeking emergency medical care that same reasoning applies here and they also have no leverage after the back to negotiate because defendants are the ones in possession of all the information that they could use to contract breach of implied contract under new mexico law and that brings me to the breach of contract claims here the district court ruled on page one hundred and thirty eight dollars of the record that there was no implied contract but there has to be a contract that gives well that's what gives rise to the obligation to pay the bill contracts go both ways to do to the extent there's no contract there's no obligation to pay the bill and the defendants would statement which the new mexico supreme court specifically adopted in state vs far fireman's fund indemnity co and then subsequently again reiterated in hydro con conduit told i respectfully disagree your honor these patients seek medical care they find they go to the grocer and ask for a barrel flour the care is provided the barrel flowers s illustration says therefore you've contracted to pay a reasonable price therefore and that's how i believe that's that's our position is that the reasonable price for the services was the meeting of the minds as the law of the state is essentially imputed into the implied contract and the new mexico's court of appeals has also recognize that where a contract is silent a why public policy favors imposing a duty here these are professional corporations that provide care to emergency medical care patients and that's what we alleged the provision of care is part of the transaction it's not separate it's all one transaction but the conduct at issue here is the defendant's syndicating the unilaterally determined medical bills to the patients th above the usual and customary rate for such said services and so that's what the issue is in this case despite the fact that it's one transaction for each patient and that's why it's also improper and and that the damage is also at issue here the damage here regardless of whether payment has occurred is the delta of the debt and what i mean by that is the portion of the debt that's  excess of the usual customary rate that should have been charged in at least three courts that i could find cluing in the southern district of texas and the nd circuit  have stated that a debt in and of itself is enough to state an injury it's also lines up with the statute of limitations law in new mexico as a relates to breach of contract claims that the new mexico supreme court cited  wealthy versus western bank of las cruces is that's as the claim begins to run at the moment of the breach and i see counsel could i just the former out of time on your contract in there's no breach the contract itself isn't coming to the terms are substantively unconscionable because they require payment above the usual customary rate and the we would ask this court to affirm of the dismissal of the complaint i think this complaint is probably the poster child for a complaint that is insufficient as a matter of law but let's let's talk about what's really an issue here and this goes to all of the alleged causes of action in the complex this case and other similar cases brought throughout the country to rise really out of the anomal american system of providing health care a court could not possibly determine what a reasonable charge for emergency services would be without waiting in the entire structure of providing hospital care and the means of dealing with hospitals hav insufficient medical providers to staff merge it's either partners on their own and they need to contract out for those services these are the subjects of which state federal executive legislatures and regulatory bodies have been wrestling in o governed by numerous legislative acts and regulatory bodies and hence the no surprises act of two thousand and twenty plaintiffs are asking this court quite simply to solve the problems of the american health care system is the only thing that issue before us there is not here under the appropriate plausible cause of action plausibility must refer to the scope of the allegations in the complaint in this case they are so general that they encompass a wide swath of conduct much of i therefore the plaintiffs have not nudged their claims across the line from conceivable to plausible look at a class definition the class definition is all individuals who were sent medical bills by defendants including but not limited to defendants in any of defendants affiliates then the past six years for amounts that exceed the highest in network a major private health insurance  certain amount yes for medical services absolutely there is a duty the billing is not a medical service they cited no case there's nothing in new mexico or new mexico law that stablish such a duty and we submit this court should not in effect legislate and create such a duty which is what we believe would be happening were there not this negligence claim to be sustained they also haven't alleged any well if they didn't allege any damage in the negligence context why would they have standing to bring a negligent squad they don't they don't they do allege further on in their complain a whole they don't incorporate it by reference some elements of damage but it is a matter of fact turning to the implied in fact contracts that i want to make this very very clear they only pleaded and imply in fact contract they've done it is efficiently but there is no other implied contract which is and how do we know that well we know that from the complaint itself the st is actually the st there's a conflict where they talk about a meeting of the minds and they talk about it repeatedly within their complaint the contract claim that there was a meeting of the minds between the end and the plaintiffs to only charge usual and customary rates and we can only have a meeting of the minds in an implied in fact contra it was a meeting of the minds and if that's the case as i said that's an implied fact contract they have not stated the elements of an implied in their track there are no there's no discussion  what representations were under implied in fact contract that we cited that the large that case which talks about an implied contract arises from the representation of the parties depends on whether they represent representations create a reasonable expectation of fractal rights and there isn't a single allegation of what those representations are the complaint is complete the  completely devoid of any such allegations they must be treated they cannot be asked about insurance they cannot be asked anything they present they are treated period therefore under him throughout as well as new mexico treat the patient if there's a preexisting duty the doctors are not giving up a right in a contract you have to give up a right and get it right their mutual promises there are no mutual promises here the doctors don't have a choice they must therefore even if we're representations about what the contract was and there aren't both both new mexico law in emtala because there's a well this is all outside the record your honor but i mean that the recourse is if they receive a bill and they don't like that bill there is a system in place a number they call to  raise issues with that bill and ask to ask if it was you know if this is an instance where there is a carrier involved that whatever the carrier paid take care of the bill and is that there's this procedure that they can call and discuss their bill and if they want it they say you know it said look it's covered by insurance you know can't do i have to pay anymore and nine dollars times out ten the answer is no however if there's a co pay or deductible or co insurance our client cannot waive those by law those must be paid that's that's how it works in i mean we can't emtala prevents any kind of negotiation but for a while there wheeled into the emergency department can't do it legally but you can certainly do it after the fact and it's done after the fact all the quite correct in dismissing it with with prejudice mr mr feiler had the opportunity to then certainly have a motion was made he did not comply with the rules in terms of trying point with prejudice and we would ask the court to affirm you counsel thank you both for your arguments this morning the case will be submitted else are excused