December 12, 2013

Provided by:  Attorney Caroline Wallitt, Litigation Partner at K&K

In light of the recent buzz surrounding the last week's Fairfield County Medical Association v. United Healthcare of New England decision, we thought it important to further expound upon the preliminary injunction, which is an accessible and sometimes vital legal remedy.  

A preliminary injunction basically consists of a very specific order that stops, or enjoins, another party from engaging in highly damaging and irreparable conduct.  In Fairfield County, the District of Connecticut, in response to the plaintiff-physicians’ motion, enjoined the defendant-insurers from implementing their termination of over 2,000 physicians from their Medicare Advantage program.   A party will often bring a motion for a preliminary injunction at the very beginning of an action alleging other claims because it fears that, without the preliminary injunction, the court’s ultimate relief will be ineffective.  The Fairfield County Court granted the plaintiff-physicians their preliminary injunction about one month after they filed the action for breach of contract and a violation of due process under the Medicare Act.   

You know that your practice is a prime candidate for a preliminary injunction if, as the result of another party’s conduct, you can show that it will suffer, or is already suffering, a severe and irreversible injury.  To illustrate, the plaintiff-physicians in Fairfield County believed that the result of the insurer-defendants’ termination announcement will be severe and irreversible damage.  Specifically, the plaintiff-physicians argued that if the insurer-defendants proceeded with their termination, then they would suffer from, among other things, a disruption of their relationships with their Medicare Advantage patients, a loss of goodwill and reputational harm, and a resulting loss of ability to compete in the market for provision of Medicare services. 

In addition to irreparable harm, you will have to demonstrate, in a motion for a preliminary injunction, either (i) that you are likely to succeed in proving the claims in your action; or (ii) sufficiently serious questions going to the merits of the case to make them a fair ground for litigation, and a balance of hardships tipping decidedly in its favor.  In Fairfield County, the Court evaluated the language of the parties’ contract and their prior experiences to conclude that the plaintiff-physicians will likely succeed in proving the defendant-insurers’ breach.  Courts will often consider other factors in deciding a motion for a preliminary injunction, such as whether it would serve the public interest.
In short, the decision to move for a preliminary injunction should not be taken lightly.  Because the order would force a party to change its conduct before the parties have presented their ultimate proofs and the action has ended, courts require the moving party to meet a high burden and approach their analysis with grave seriousness.  Preliminary injunctions are sparingly awarded.  But if you believe that your practice would benefit from one, it is likely in a precarious situation and you should retain counsel immediately.  Don’t ever think that you shouldn’t seek legal relief because your practice is already becoming damaged and it may be too late.  Alternatively, don’t ever shy away from legal action because you want to wait and see if your practice experiences any injury.  Our litigators are prepared to help you with the analysis and make the best choice for the health of your practice.

Have a question for Caroline?  Contact her at 516 747 6700 x. 305 or email her at