Bariana v. Florida Health Sciences Center, Inc., D/B/A Tampa General Hospital

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

CHRISTOPHER BARIANA, D.O.,

Appellant,

v.

FLORIDA HEALTH SCIENCES CENTER, INC.,

d/b/a TAMPA GENERAL HOSPITAL, and

TAMPA GENERAL MEDICAL GROUP, INC.,

a Florida corporation,

Appellees.

No. 2D2024-1355

May 16, 2025

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for

Hillsborough County; Darren D. Farfante, Judge.

Kendra D. Presswood, Kiren Choudhry, and Gabriel T. Roberts of Scott

Law Team, LLC, Jupiter, for Appellant.

Joseph H. Lang, Jr., Allison O. Kahn, and Alana Zorrilla-Gaston of

Carlton Fields, P.A., Tampa, for Appellees.

MORRIS, Judge.

Christopher Bariana, D.O. (Dr. Bariana), appeals an order granting

a motion for temporary injunction filed by his former employer, Florida

Health Sciences Center, Inc., doing business as Tampa General Hospital,

and Tampa General Medical Group, Inc. (collectively referred to as

Tampa General). We reverse the order granting the temporary injunction

because the restrictive covenants on which it is based are unenforceable.

I. Background

In June 2023, Dr. Bariana filed a complaint against Tampa

General, asserting claims for breach of contract, declaratory judgment,

and unlawful retaliation in violation of Florida's Whistleblower Act. 1 On

February 15, 2024, Dr. Bariana filed a second amended complaint,

alleging a count for retaliation in violation of section 448.102(3), Florida

Statutes (2022), a count seeking a declaratory judgment that his

restrictive covenants are unenforceable, and a count for breach of

contract. Dr. Bariana alleged that he had been employed by Tampa

General as a physician of thoracic surgery with a specialty in thoracic

oncology and that he had executed an employment agreement on

January 3, 2022, which contained restrictive covenants. Dr. Bariana

alleged that during his employment, he was subjected to various forms of

mistreatment, including a physical battery by a supervisor. He alleged

that he reported the mistreatment on two occasions and that the

mistreatment continued after both reports. As a result, he resigned from

his employment on April 28, 2023.

On February 23, 2024, Tampa General filed an emergency motion

for temporary injunctive relief pursuant to section 542.335, Florida

Statutes (2022), and Florida Rule of Civil Procedure 1.610. Tampa

General alleged that Dr. Bariana had begun employment as a thoracic

surgeon at Bayfront Health Medical Group and that such employment

1 Dr. Bariana also filed a motion for declaratory judgment in June

2023, seeking a declaration of his legal obligations under the

employment agreement, but the trial court granted Tampa General's

motion to strike on the basis that declaratory relief was not appropriate

at that time.

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violated his restrictive covenants with Tampa General. The employment

agreement between Dr. Bariana and Tampa General contains the

following noncompetition and nonsolicitation provisions:

10.01 Noncompetition. Physician agrees that during the

Term, and for a period of two (2) years following termination or

Expiration of this Agreement, Physician shall not, directly or

indirectly, enter into, engage in, invest, own, operate, manage

or be employed by, or in any other way be affiliated with any

person or entity that provides Thoracic Surgery medicine

services within Hillsborough, Pinellas, Manatee, Pasco, Polk,

Citrus, Charlotte, DeSoto, Hardee, Hernando, Highlands,

Sarasota and Lee Counties (the "Restricted Area") or otherwise

provide Thoracic Surgery medicine services anywhere in the

Restricted Area other than at the Hospital and other locations

designated by the Hospital. Physician acknowledges that the

noncompetition covenants contained herein are meant to

protect legitimate business interests of Employer and but for

Physician agreeing to same, Employer would not have entered

into this Agreement.

10.02 Nonsolicitation. Physician agrees that during the

Term, and for a period of two (2) years following termination

or Expiration of this Agreement, Physician shall not:

(a) Engage or participate in any effort or act to induce

or solicit, directly or indirectly, any patients, employees,

insurance companies, managed care plans, Employer's

customers or other customers of the business conducted by

Employer, or the Hospital, to withdraw, curtail or terminate

their business relationship with Employer or for services

competitive with those of Employer or the Hospital, or assist,

induce, help or join any other person or company in doing

any of the above activities. Notwithstanding the foregoing,

Physician may place general advertisements or engage in

general solicitations that are not specifically targeted to

Employer's patients or customers.

(b) Solicit the services of any physician, consultant, or

provider which renders services to, or for the benefit of,

Employer's or the Hospital's customers, for Physician's use or

benefit or for any other person's or company's use or benefit,

or induce or help to induce any Physician, consultant or

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provider that renders services to, or for the benefit of,

Employer or the Hospital without Employer's prior written

consent. Nothing herein would prohibit a formerly employed

physician from making referrals to any other physician

employed by Employer during or after the Term.

(Emphasis added.) Dr. Bariana opposed the motion for temporary

injunctive relief, arguing, among other things, (1) that Tampa General

had breached the employment agreement and (2) that under section

542.336, which applies specifically to physicians, the restrictive

covenants are not supported by a legitimate business interest.

At the hearing on the motion for temporary injunctive relief, Tampa

General presented the testimony of Dr. Bariana and Tyler Carpenter,

Tampa General's Vice President of People and Talent. Dr. Bariana

presented the testimony of Trina Espinola, M.D., Bayfront's Chief

Medical Officer.

On May 6, 2024, the trial court granted, in part, Tampa General's

motion for temporary injunctive relief. The trial court found that Dr.

Bariana violated the restrictive covenants by "(a) accept[ing] employment

with a direct competitor, Bayfront, which provides thoracic surgery

medicine services in Pinellas County, in direct violation of the

unambiguous restrictions set forth in his Employment Agreement with

Tampa General and (b) solicit[ing] Tampa General's referring physicians

and employees customers [sic]." In regard to Tampa General's legitimate

business interests, the trial court went on to find that

[t]he Employment Agreement protects Tampa General's

considerable investment in its confidential and proprietary

information including the information it maintains concerning

its patients, such as patient contact information[] and patient

needs. Tampa General has specific patients and geographic

locations that are protectable by the restrictive covenants and

has made substantial investment to develop and maintain its

patient base, patient goodwill, and physician referral services.

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....

. . . Tampa General has legitimate business interests

justifying the restrictive covenants laid out in the

Employment Agreement. These include:

a. Protection of valuable confidential business and

professional information;

b. Substantial relationships with specific prospective or

existing patients and customers;

c. The protection of patient, customer and client

goodwill; and

d. Protecting the value that Tampa General paid to

build and market its thoracic surgery practice.

The trial court further found that Tampa General has a strong likelihood

of success on the merits, that Tampa General has no adequate remedy

on appeal, and that Tampa General "faces irreparable injury in the form

of lost customers, damage to goodwill and further disclosure and use of

its confidential information if the preliminary injunction is not issued."

The trial court found that the public interest is served by a temporary

injunction enforcing the restrictive covenants because "Tampa General

has expended considerable financial resources in the development of its

thoracic surgery practice."

The trial court rejected Dr. Bariana's defense that Tampa General

breached the employment agreement, noting that it had "carefully

reviewed the evidence presented at the [h]earing" and had considered the

credibility of the live testimony from witnesses and the deposition of Dr.

Bariana's supervisor. The trial court also rejected, without explanation,

Dr. Bariana's argument that the noncompete provision is invalid under

section 542.336.

The trial court immediately enjoined Bariana from

(a) working as a thoracic surgeon or operating for any

competitor of Tampa General in Hillsborough and Pinellas

Counties, specifically including Bay[f]ront; (b) soliciting

customers, referral sources, or service providers with whom

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Plaintiff Christopher Bariana, D.O. interacted with or had

confidential information about while employed with either

Tampa General; [(c)] sharing Tampa General[']s proprietary

information; and [(d)] soliciting any employee or independent

contractor, or in any other way modifying or altering their

respective employment or business relationship with, Tampa

General. Further, Plaintiff shall refrain from providing any

Tampa General confidential information to Bayfront or any

other competitor of Tampa General.

II. Analysis

In reviewing the temporary injunction, we employ a hybrid

standard of review: "To the extent the trial court's order is based on

factual findings, we will not reverse unless the trial court abused its

discretion; however, any legal conclusions are subject to de novo review."

Surgery Ctr. Holdings, Inc. v. Guirguis, 318 So. 3d 1274, 1277 (Fla. 2d

DCA 2021) (quoting REV Recreation Grp., Inc. v. LDRV Holdings Corp.,

259 So. 3d 232, 235 (Fla. 2d DCA 2018)). "A temporary injunction

should only issue when 'the moving party has demonstrated (1)

irreparable harm to the moving party unless the injunction issues, (2)

unavailability of an adequate legal remedy, (3) a substantial likelihood of

success on the merits, and (4) that the public interest is supported by

the entry of the injunction.' " Id. (quoting Atomic Tattoos, LLC v. Morgan,

45 So. 3d 63, 64-65 (Fla. 2d DCA 2010)).

Section 542.335 permits the enforcement of a written restrictive

covenant that is "reasonable in time, area, and line of business" and that

is justified by "one or more legitimate business interests."

§ 542.335(1)(a)–(b).

The term "legitimate business interest" includes, but is not

limited to:

1. Trade secrets, as defined in s. 688.002(4).

2. Valuable confidential business or professional information

that otherwise does not qualify as trade secrets.

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3. Substantial relationships with specific prospective or

existing customers, patients, or clients.

4. Customer, patient, or client goodwill associated with:

a. An ongoing business or professional practice, by way of

trade name, trademark, service mark, or "trade dress";

b. A specific geographic location; or

c. A specific marketing or trade area.

5. Extraordinary or specialized training.

§ 542.335(1)(b). "Any restrictive covenant not supported by a legitimate

business interest is unlawful and is void and unenforceable." Id.

No court may refuse enforcement of an otherwise

enforceable restrictive covenant on the ground that the

contract violates public policy unless such public policy is

articulated specifically by the court and the court finds that

the specified public policy requirements substantially

outweigh the need to protect the legitimate business interest

or interests established by the person seeking enforcement of

the restraint.

§ 542.335(1)(i).

Section 542.336, titled "Invalid restrictive covenants," applies to

physicians and provides:

A restrictive covenant entered into with a physician who

is licensed under chapter 458 or chapter 459 and who

practices a medical specialty in a county wherein one entity

employs or contracts with, either directly or through related

or affiliated entities, all physicians who practice such

specialty in that county is not supported by a legitimate

business interest. The Legislature finds that such covenants

restrict patient access to physicians, increase costs, and are

void and unenforceable under current law. Such restrictive

covenants shall remain void and unenforceable for 3 years

after the date on which a second entity that employs or

contracts with, either directly or through related or affiliated

entities, one or more physicians who practice such specialty

begins offering such specialty services in that county.

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We agree with Dr. Bariana that the trial court erred in rejecting his

argument that the restrictive covenants are not supported by a legitimate

business interest as provided in section 542.336.

At the hearing, Dr. Bariana testified that he performs "minimally

invasive robotic surgery that's esophageal . . . and lung surgery, complex

surgeries, chest wall resections," which are procedures that "[a] lot of

places don't necessarily do." Bayfront employs another surgeon, but that

surgeon "does open procedures" and is "not fully credentialed for" robotic

surgery. He believed it was common knowledge among thoracic surgeons

that there was a need in Pinellas County in the area of esophageal

surgery. When Dr. Bariana was employed by Tampa General, he worked

at a clinic in Pinellas County on approximately six occasions, rarely

seeing more than one or two patients each time. He never performed

surgeries for Tampa General in Pinellas County.

Dr. Bariana also presented the testimony of Dr. Espinola, Chief

Medical Officer for Bayfront and a practicing otolaryngologist head and

neck surgeon. She testified that Bayfront has two thoracic surgeons in

Pinellas County, Dr. Bariana and the other surgeon, who is in the later

stages of his career. The other surgeon "does very limited thoracic

surgery on some very, very basic lung cancers and some media-style

evaluations as well." Dr. Espinola testified that

Dr. Bariana does the full spectrum of complex thoracic

procedures and really practices with the clinical acumen that

we would want our patients to be cared for in this day and

age. He does mostly robotic lung cancer work, and media-

style work, as well as what's called esophageal or for gut or

esophageal surgery, and those surgeries are done for either

lung cancer or esophageal cancer or other swallowing

disorders that may require his expertise.

Dr. Espinola testified that prior to Dr. Bariana joining Bayfront, Bayfront

did not have its own surgeon capable of performing such procedures.

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Bayfront had the ability "to have a surgeon come down one day a month

[from Orlando] to perform one or two procedures" and proctor the other

surgeon. However, the other surgeon was not capable of performing

those procedures by himself. Bayfront "had very limited ability to take

care of those patients with lung cancer[,] and certainly very few patients

with any type of esophageal injury or cancer were taken care of by" the

other surgeon. Bayfront had "been looking for a thoracic surgeon for a

very long period of time." Prior to Dr. Bariana joining in Pinellas County,

Bayfront "had not had a thoracic surgeon with the skill and expertise

necessary to take care of lung cancer patients and/or complicated

esophageal injuries or cancers or tumors in over seven years." When

asked if there were any other surgeons in Pinellas County who performed

the same procedures as Dr. Bariana, Dr. Espinola testified that there is

another surgeon in North Pinellas but that he "does no esophageal work

to [her] knowledge and then limited, very, very early lung cancer work."

Dr. Espinola was asked about the specific needs for Dr. Bariana's

services in Pinellas County, and she testified as follows:

Our community is . . . very diverse, but also very, very

committed to staying in our community that [our] patients of

the Pinellas County Health Department or the free clinic have

no access to care outside of South Pinellas. There's no

payment, and . . . those are patients that don't have the

ability to have a lot of transportation either to remote areas,

whether it be Clearwater, which is actually, I think, further

than Tampa is. So those patients—and I take care and share

a number of those patients because a lot of patients that have

head and neck cancer also have lung cancer.

So those patients have no access to any care and their

care is horribly delayed or never ever received if they receive it

in our county.

Dr. Espinola testified that "at least 30 or 40 percent of the population

that we take care of at Bayfront [is] . . . in a financial situation where

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they would not be able to afford" to travel to Tampa hospitals for their

care.

Dr. Espinola explained that prior to hiring Dr. Bariana, Bayfront

would bring over a surgeon from Orlando who would perform procedures

on approximately two patients a month but that this practice "delayed

patient care and accelerated . . . poor prognostic features for patients,

i.e., the . . . lung nodules or the lung cancer would grow, possibly

metastasize and spread." Dr. Espinola testified that if Dr. Bariana is not

able to work at Bayfront,

there will again be delay in care. Lung cancer patients will

have advanced disease when they're finally able to receive

their case because there's only a limited amount of time that

[Bayfront] can get [the Orlando surgeon] to come back from

Orlando because he's busy taking care of his patients in . . .

Orlando, and certainly, esophageal injuries will either not be

taken care of or will have to be shipped to Tampa General.

She testified that "delay in care when we're performing cancer procedures

is really not something that any clinician wants to see for their patients."

Through the testimony set forth above, Dr. Bariana demonstrated

that the restrictive covenant is not supported by a legitimate business

interest, according to section 542.336. As Dr. Bariana is the only

physician who performs his specialized procedures in Pinellas County,

Dr. Bariana "practices a medical specialty in a county wherein one entity

employs or contracts with . . . all physicians who practice such specialty

in that county." Id. There was no testimony offered by Tampa General

that any other physicians practice Dr. Bariana's specialty in Pinellas

County. Therefore, based on the plain language of the statute, the

"restrictive covenant entered into with" Dr. Bariana, which prevents him

from providing his specialized services in Pinellas County, "is not

supported by a legitimate business interest." The legislature found that

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"such covenants restrict patient access to physicians [and] increase

costs," see id., and those findings are supported by the testimony offered

by Dr. Espinola at the hearing in this case.

We recognize that the entity that employs or contracts with Dr.

Bariana in Pinellas County is Bayfront and that the restrictive covenants

at issue are between Dr. Bariana and Tampa General. However, the

restrictive covenants with Tampa General prevent Dr. Bariana from

practicing in Pinellas County, and the plain language of the statute does

not require the restrictive covenant to be with the entity that employs the

physician in the county. See KMG Props., LLC v. Owl Constr., LLC, 393

So. 3d 240, 247 (Fla. 2d DCA 2024) ("The interpretation of a statute

begins 'with the plain meaning of the actual language' the statute

employs." (quoting Nat'l Auto Serv. Ctrs., Inc. v. F/R 550, LLC, 192 So. 3d

498, 504 (Fla. 2d DCA 2016))). And the stated intent of the statute is to

avoid restricting patient access to physicians and increasing costs.2 See

id. ("It is beyond cavil that 'legislative intent is determined primarily from

the statute's text.' " (quoting Heart of Adoptions, Inc. v. J.A., 963 So. 2d

189, 198 (Fla. 2007))). Regardless of which entity was employing him at

the time, Dr. Bariana is the only physician in Pinellas County qualified to

perform certain thoracic procedures in Pinellas County, and a restrictive

2 Section 542.336 was adopted in 2019. No Florida cases have

addressed it yet. One federal court has considered the statute, stating

that "[s]ection 542.336 declares that, when a particular entity employs or

contracts with all physicians practicing a given specialty in a given

county, any noncompete agreements between that entity and those

physicians are void." 21st Century Oncology, Inc. v. Moody, 402 F. Supp.

3d 1351, 1356 (N.D. Fla. 2018). But the entity in that case had

employed "all nine of the radiation oncologists practicing in Lee County,

Florida, making Plaintiff the only provider of radiation oncology services

in that county." Id. at 1360. Thus, the federal court was not presented

with facts similar to ours.

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covenant that prevented him from doing so "is not supported by a

legitimate business interest" and is "void and unenforceable." See id.3 In

its order, the trial court noted that it had heard the testimony of Dr.

Espinola, but the trial court erred in overlooking or disregarding the

unrefuted evidence that Dr. Bariana is the only physician who provides

necessary specialized services in Pinellas County.

Even if section 542.336 were not applicable, the evidence clearly

demonstrated that the agreement's restrictions on Dr. Bariana's

practicing of his specialized procedures in Pinellas County for two years

violates public policy. Section 542.335(1)(i) provides that a restrictive

covenant may be unenforceable on the ground that it violates public

policy if "such public policy is articulated specifically by the court and

the court finds that the specified public policy requirements substantially

outweigh the need to protect the legitimate business interest or interests

established by the person seeking enforcement of the restraint." The trial

court found that the public interest is served by enforcing the restrictive

covenants because "Tampa General has expended considerable financial

resources in the development of its thoracic surgery practice." The trial

court erred in concluding that Tampa General's business interests were

3 The statute also provides that the restrictive covenant "shall

remain void and unenforceable for 3 years after the date on which a

second entity that employs or contracts with, either directly or through

related or affiliated entities, one or more physicians who practice such

specialty begins offering such specialty services in that county."

§ 542.336, Fla. Stat. (2022). However, the restrictive covenants in this

case only restricted Dr. Bariana for two years. We note that the order of

injunction enforces the restrictive covenants "until final disposition of

this action or further Order of this Court modifying or terminating this

Temporary Injunction." But we assume, based on the language of the

agreement, that the restrictive covenants expired on April 27, 2025, two

years after Dr. Bariana terminated his employment.

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not substantially outweighed by the need for specialized medical services

in Pinellas County. As discussed above, Dr. Bariana demonstrated at the

hearing that there is no other physician in Pinellas County who is able to

regularly perform his specialized procedures and that without Dr.

Bariana's services, patient care in Pinellas County is significantly

delayed, leading to accelerated poor prognoses for patients, i.e., cancer

growth and metastases. See Lloyd Damsey, M.D., P.A. v. Mankowitz, 339

So. 2d 282, 283 (Fla. 3d DCA 1976) (holding that restrictive covenant

was "unduly harsh and oppressive" in part because "[t]he testimony . . .

revealed a compelling need for defendant's services as a surgeon in the

area and enforcement of the covenant would jeopardize the public health

of the community"); cf. Joseph Spine, P.A. v. Moulton, 346 So. 3d 154,

162 (Fla. 2d DCA 2022) (holding that "the trial court's brief mention of

protecting patients' continuity of care does not explain why this concern

substantially outweighs enforcement of the restrictions" where the

physician "failed to present evidence that patients in this geographic area

are underserved or otherwise unable to obtain the healthcare he

provides"). The public health of Pinellas County would be jeopardized by

the enforcement of the restrictive covenants, and this public policy

concern substantially outweighs Tampa General's interests.

In conclusion, the trial court erred in enforcing the restrictive

covenants and in granting Tampa General's motion for temporary

injunction for the reasons explained above. We need not address Dr.

Bariana's remaining arguments. We reverse the order granting the

temporary injunction and remand for proceedings consistent with this

opinion.

Reversed and remanded.

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LABRIT, J., Concurs.

ATKINSON, J., Dissents with opinion.

ATKINSON, Judge, Dissenting.

I respectfully dissent. Section 542.336 is directed at specific

"specialt[ies]" practiced by physicians—not particular services provided

or procedures performed by physicians, which was the focus of Dr.

Bariana's argument against enforcement of the restrictive covenant in

this case. See § 542.336, Fla. Stat. (2022) ("A restrictive covenant

entered into with a physician who is licensed under chapter 458 or

chapter 459 and who practices a medical specialty in a county wherein

one entity employs or contracts with, either directly or through related or

affiliated entities, all physicians who practice such specialty in that

county is not supported by a legitimate business interest." (emphasis

added)); see also § 459.0152, Fla. Stat. (2022) ("An osteopathic physician

licensed under this chapter may not hold himself or herself out as a

board-certified specialist unless the osteopathic physician has

successfully completed the requirements for certification by the American

Osteopathic Association or the Accreditation Council on Graduate

Medical Education and is certified as a specialist by a certifying agency

approved by the board. However, an osteopathic physician may indicate

the services offered and may state that his or her practice is limited to

one or more types of services when this accurately reflects the scope of

practice of the osteopathic physician." (emphasis added)). And rather

than requiring a trial court to affirmatively recognize public policy that

supports enforcement of a restrictive covenant before enforcing it, section

542.335 requires that a trial court "specifically" "articulate[]" public

policy that the contract violates and find "that the specified public policy

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requirements substantially outweigh the need to protect the legitimate

business interest or interests established by the person seeking

enforcement of the restraint" before the court may "refuse enforcement of

an otherwise enforceable restrictive covenant on the ground that the

contract violates public policy." § 542.335(1)(i) (emphasis added)

(providing that without the specific articulation of public policy "that the

contract violates" and the requisite weighing against the need to protect

the legitimate business interest, "[n]o court may refuse enforcement"

based on a violation of public policy); see also § 542.335(1)(j) ("A court

shall enforce a restrictive covenant by any appropriate and effective

remedy, including, but not limited to, temporary and permanent

injunctions. The violation of an enforceable restrictive covenant creates a

presumption of irreparable injury to the person seeking enforcement of a

restrictive covenant.").

Additionally, a fair reading of the language of section 542.336 does

not support a necessary premise of the majority's analysis of that

statute—that it does not matter whether the entity employing or

contracting with all physicians practicing a specialty in a county was the

one with whom the physician "entered into" the restrictive covenant. See

§ 542.336. For section 542.336 to apply, there must be a physician who

practices a medical specialty in a particular county, and there must be

an entity that directly or indirectly employs or contracts with all

physicians who practice such specialty in that county. See id. That

physician and that entity must both be the parties to the restrictive

covenant because the statute presupposes that the physician entering

into the restrictive covenant is practicing the same specialty as the one

entity employing or contracting with all physicians practicing that

specialty in that county—so, if it were another entity, there would be two

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such entities, rendering the statute meaningless and ineffectual. See

Ham v. Portfolio Recovery Assocs., 308 So. 3d 942, 947 (Fla. 2020)

(recognizing that "arriv[ing] at a 'fair reading' of the text . . . involv[es]

'faithful reliance upon the natural or reasonable meanings of language

and choosing always a meaning that the text will sensibly bear by the fair

use of language' " (first quoting Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 33 (2012); and then

quoting Frederick J. de Sloovère, Textual Interpretation of Statutes, 11

N.Y.U. L.Q. Rev. 538, 541 (1934))). Moreover, according to Dr. Bariana's

theory of the case, to the extent there were any physicians at all

practicing what he claims to be the relevant "medical specialty" in

Pinellas County prior to his employment with Bayfront in violation of the

restrictive covenant, none of them were employed by or contracted with

Tampa General. Dr. Bariana himself testified that when he was

employed by, and entered into a restrictive covenant with, Tampa

General, he did not practice what he claims to be the relevant "medical

specialty" in Pinellas County. And to the extent the testimony supports

that an Orlando physician sometimes practiced the alleged "medical

specialty" in Pinellas County, he contracted with Bayfront, not Tampa

General.

The language of section 542.336 prevents an entity from entering

into an enforceable restrictive covenant with a physician practicing a

medical specialty when that entity is the only one that employs or

contracts with physicians practicing that specialty in a county—thereby

preventing such an entity from eliminating all in-county competition in

that specialty through the use of restrictive covenants with physicians

practicing that specialty. But pursuant to Dr. Bariana's theory of the

case and the testimony he adduced to support it, Dr. Bariana was not a

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physician "who practice[d]" what he contends is the salient "medical

specialty" in Pinellas County when he "entered into" the "restrictive

covenant." See § 542.336. This fact alone undermines his and the

majority's conclusion that the restrictive covenant is unenforceable

under section 542.336, even leaving aside the fact that there was no

evidence that Tampa General—the "entity" with whom he "entered into"

the restrictive covenant—employed "all [the] physicians who practice[d]"

the purported "medical specialty" in Pinellas County. See id.

I would affirm the order granting the injunction.

Opinion subject to revision prior to official publication.

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