State of Florida, Department of Health v. Bayfront HMA Medical Center, LLC etc.

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-2174

_____________________________

STATE OF FLORIDA, DEPARTMENT

OF HEALTH,

Appellant,

v.

BAYFRONT HMA MEDICAL

CENTER, LLC d/b/a BAYFRONT

HEALTH - ST. PETERSBURG, and

GALENCARE, INC. d/b/a

NORTHSIDE HOSPITAL,

Appellees.

_____________________________

No. 1D17-2229

_____________________________

GALENCARE, INC. d/b/a

NORTHSIDE HOSPITAL,

Appellant,

v.

BAYFRONT HMA MEDICAL

CENTER, LLC d/b/a BAYFRONT

HEALTH-ST. PETERSBURG,

Appellee.

_____________________________

On appeal from the Circuit Court for Leon County.

Karen A. Gievers, Judge.

January 2, 2018

LEWIS, J.

In these consolidated appeals, Appellants, the Department of

Health (Department) and Galencare, Inc. d/b/a Northside Hospital

(Northside), appeal a non-final order enjoining Northside from

operating a provisional trauma center and enjoining the

Department from allowing Northside to operate one prior to the

conclusion of any timely-filed administrative proceeding

challenging any preliminary approval of Northside’s application

and any judicial review. Appellants raise two issues on appeal,

only one of which merits discussion. Appellants argue, and we

agree, that the trial court erred by granting the motion for

temporary injunction filed by Appellee, Bayfront HMA Medical

Center, LLC d/b/a Bayfront Health - St. Petersburg (Bayfront),

because Bayfront failed to prove its entitlement to temporary

injunctive relief. Therefore, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Bayfront operates a level II trauma center in Trauma Service

Area (“TSA”) 9. On September 30, 2016, Northside submitted to

the Department a letter of intent (“LOI”) to apply for approval to

operate a new trauma center in TSA 9. On October 14, 2016, the

Department accepted Northside’s LOI and responded with

instructions on how to submit a trauma center application by the

April 3, 2017, deadline.

On March 10, 2017, Bayfront filed against Appellants a

Complaint for Injunctive and Declaratory Relief, arguing that the

Department lacks colorable authority to (1) accept a LOI and

application from Northside because TSA 9 currently does not have

a trauma center position available given that Florida

Administrative Code Rule 64J-2.010 provides for two positions in

that TSA and both are filled and (2) allow a provisional trauma

center to operate during the pendency of an administrative

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challenge to the provisional approval of the application. In Count

1, Bayfront asked that the Department be enjoined from accepting

and processing Northside’s LOI and application and from allowing

Northside to begin provisionally operating prior to the conclusion

of any timely-filed administrative proceeding challenging any

preliminary approval, and also asked that Northside be enjoined

from operating as a provisional trauma center in TSA 9 until the

conclusion of any administrative challenge. In Count 2, Bayfront

sought a declaratory judgement.

On March 24, 2017, Bayfront filed a Motion for Temporary

Injunction, seeking to enjoin the Department from permitting

Northside to begin operating as a provisional trauma center, and

seeking to enjoin Northside from operating as a provisional

trauma center, prior to the conclusion of all timely-filed

administrative challenges. On or around March 31, 2017,

Northside submitted to the Department an application to operate

a trauma center in TSA 9. The parties stipulated that the

Department would permit Northside to begin operating on May 1,

2017, if its application met the programmatic requirements upon

the Department’s review.

At the April 5, 2017, evidentiary hearing on Bayfront’s

motion, Kathryn Gillette, the market president and CEO of

Bayfront, testified that Bayfront tracks the zip codes of its patients

and conservatively estimates, after having made some

assumptions, that it would lose 905 of its 2,725 patients and $4.5

million annually if Northside’s trauma center were to open.

Gillette was aware of only one emergency room nurse leaving

Bayfront for Northside and was not aware of any physicians

leaving. Gillette further testified that despite two trauma centers

opening in the vicinity, Bayfront has maintained a quality

program and sufficient patient volume. Gillette agreed that the

Department’s action of receiving and reviewing Northside’s

application does not pose any harm and there is no adverse impact

until the Department approves the application.

Dr. Steven Epstein, a trauma surgeon and the trauma medical

director at Bayfront, testified that he believes if Northside opened

a trauma center, Bayfront would lose half or more of its patients

and there would be nothing to do to regain its patient volume,

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which in turn would have a financial impact on Bayfront and

would endanger the trauma staff’s skills. When Bayfront sought

to prevent Regional Medical Center Bayonet Point, the other

trauma center serving TSA 9, from being approved, Epstein was of

the view in those legal proceedings that Bayonet’s opening would

have the same kind of impact he now believes Northside’s opening

will have. Epstein testified that Bayfront continues to provide

high quality care that was not diminished by the opening of the

two trauma centers in the vicinity, but opined that the opening of

those trauma centers is not comparable to Northside because they

are located farther away. Epstein added that even those openings

resulted in a loss of patients to Bayfront, but Bayfront was able to

recover its patient volume after working with EMS to revise the

transport protocols. Epstein further testified that “nobody will be

leaving Bayfront to go to Northside” because employees are bound

by non-compete clauses and do not wish to leave, although trauma

surgeons expressed a potential desire to leave if they cannot

maintain their skills.

Cindy Dick testified on the Department’s behalf that

according to the Department’s 2016 assessment of the statewide

trauma system, 36.35% of severely injured patients in TSA 9 did

not receive care in a trauma center. Dick explained that the

Department may review and provisionally grant an application

irrespective of the availability of a trauma center slot in the TSA

and the Department is not authorized to refuse to process

Northside’s application or to prevent Northside from beginning

provisional operation on May 1st if its application is found

acceptable. During litigations over the years, there has been much

discussion about the quality of care declining at existing trauma

centers as a result of new trauma centers opening nearby, but the

Department has not received any evidence indicating that to be the

case; to the contrary, experts have testified that their quality of

care did not diminish upon the opening of new trauma centers in

their area.

Peter Kennedy, the chief operating officer at Northside,

testified that in order to comply with the Department’s application

requirements, Northside hired trauma staff, acquired proper

equipment, renovated its emergency room, and implemented over

200 protocols and thousands of training hours; in doing so, it

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incurred about $4 million in start-up costs. Kennedy testified that

none of Northside’s thirty-two-plus non-physician and five or six

physician hirees were Bayfront employees.

Dr. Erik Barquist, a trauma surgeon and the interim trauma

medical director at Northside, testified that Northside has hired

the requisite trauma surgeons, and the literature does not indicate

what happens to a trauma center’s quality of care when its patient

volume decreases due to a new competitor. Barquist opined that

Bayfront presented the worst case scenario in estimating its losses

and given its standing and experience in the community, it will

find a way to work with EMS to mitigate the decrease in its patient

volume. In every Florida case that Barquist was aware of, existing

trauma centers were concerned about and challenged new trauma

centers, yet continued to operate, and he was not aware of there

being a diminution in quality at any existing trauma center.

In April 2017, the trial court entered an Order Enjoining

Appellants, wherein it ordered that pending further order of the

court, Northside is prohibited from operating a provisional trauma

center in TSA 9, and pending further order of the court and the

opening of a trauma center slot in TSA 9, the Department is

enjoined from permitting Northside to operate a provisional

trauma center until the completion of the administrative

proceedings relating to Northside’s application and any judicial

review. The trial court found in part that the evidence and

controlling law provide a substantial certainty that Bayfront will

prevail on the merits of its claim because the Department planned

to require Northside to begin the provisional operation of a trauma

center on May 1, 2017, even though the law precludes provisional

licensees from beginning to provide trauma services if there is not

an open slot in the TSA and even though there was no final agency

action. The trial court further found that Bayfront established

that it will be irreparably harmed by Northside’s immediate

trauma operations on May 1st upon the approval of its application

and that those irreparable harms include economic harm due to

the dilution of trauma patients, increased difficulty in hiring

qualified trauma staff due to competition, increased difficulty in

maintaining qualified trauma staff due to the decrease in trauma

patient volume, and decreased quality of trauma care.

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By letter dated May 1, 2017, the Department informed

Northside that it had completed the provisional review of its

application and denied the application upon determining it did not

meet the standards of critical elements for provisional status.

These appeals followed.

STATUTORY FRAMEWORK AND THE TRAUMA CENTER

APPLICATION PROCESS

We begin with a brief overview of the statutory and regulatory

framework governing trauma centers. The Florida Legislature has

found it necessary to establish an inclusive trauma system

“designed to meet the needs of all injured trauma victims who

require care in an acute-care setting.” § 395.40(2), Fla. Stat.

(2016). To that end, the Legislature “place[s] primary

responsibility for the planning and establishment of a statewide

inclusive trauma system with the department” and requires the

Department to update the state’s trauma system plan at least

annually. § 395.40(3)-(6), Fla. Stat.; see also § 395.402(3), Fla.

Stat. (2016) (directing the Department to consider various factors

in its annual review of the trauma system, including “[t]he

geographical composition of an area to ensure rapid access to

trauma care by patients,” “[p]opulation growth characteristics,”

and “[t]he actual number of trauma victims currently being served

by each trauma center”). The Legislature has established nineteen

TSAs, with TSA 9 consisting of Pasco and Pinellas Counties, and

has provided that each TSA should have at least one Level I or

Level II trauma center, “[t]he department shall allocate, by rule,

the number of trauma centers needed for each trauma service

area,” and “[t]here shall be no more than a total of 44 trauma

centers in the state.” § 395.402(4), Fla. Stat. Florida

Administrative Code Rule 64J-2.010 sets forth the criteria to be

used in allocating trauma centers among the TSAs and allocates

two trauma centers for TSA 9.

Section 395.4025, Florida Statutes (2016), governs the trauma

center application and selection process. First, the Department

“shall annually notify each acute care general hospital . . . that the

department is accepting letters of intent from hospitals that are

interested in becoming trauma centers.” § 395.4025(2)(a), Fla.

Stat. Letters of intent must be postmarked by midnight October

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1. Id. “By October 15, the department shall send to all hospitals

that submitted a letter of intent an application package that will

provide the hospitals with instructions for submitting information

to the department for selection as a trauma center.” §

395.4025(2)(b), Fla. Stat. “In order to be considered by the

department, applications . . . must be received by the department

no later than the close of business on April 1.” § 395.4025(2)(c),

Fla. Stat. Then, the Department “shall conduct a provisional

review of each application for the purpose of determining that the

hospital’s application is complete and that the hospital has the

critical elements required for a trauma center.” Id. “After April

30, any hospital that submitted an application found acceptable by

the department based on provisional review shall be eligible to

operate as a provisional trauma center.” § 395.4025(3), Fla. Stat.

After a hospital is approved as a provisional trauma center,

“[b]etween May 1 and October 1, the department shall conduct an

in-depth evaluation of all applications found acceptable in the

provisional review.” § 395.4025(4), Fla. Stat. Finally, based on the

recommendations from a review team, the Department shall select

verified trauma centers by July 1 of the second year following the

filing of the letter of intent. § 395.4025(6), Fla. Stat. If the number

of qualified provisional trauma centers exceeds the number of

available slots for verified trauma centers in the applicable TSA,

the Department must apply the tiebreaking process set forth in

Florida Administrative Code Rule 64J-2.016(11) to make the final

selection(s). Upon final verification, a trauma center is granted

approval to operate for seven years, provided it continues to

maintain trauma center standards and acceptable patient

outcomes, and may thereafter apply for renewal. § 395.4025(6),

Fla. Stat.

ANALYSIS

The standard of review of a trial court’s order on a request for

temporary injunction is hybrid: the court’s factual findings are

reviewed for an abuse of discretion, whereas its legal conclusions

are reviewed de novo. Gainesville Woman Care, LLC v. State, 210

So. 3d 1243, 1258 (Fla. 2017). An issue involving statutory

interpretation is also reviewed de novo, and an agency’s

interpretation of a statute it is charged with administering is

7

generally entitled to greater deference and will be upheld unless

clearly erroneous. Dep’t of Revenue v. Graczyk, 206 So. 3d 157, 159

(Fla. 1st DCA 2016).

“The polestar of a statutory construction analysis is legislative

intent.” W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8 (Fla.

2012). To discern legislative intent, the court must first look to the

plain and obvious meaning of the statute’s text, which may be

discerned from a dictionary. Id. at 9. If the statutory language is

clear and unambiguous, the court must apply that unequivocal

meaning and may not resort to the rules of statutory construction.

Id. “Further, courts are ‘without power to construe an

unambiguous statute in a way which would extend, modify, or

limit, its express terms or its reasonable and obvious implications.

To do so would be an abrogation of legislative power.’” Bennett v.

St. Vincent’s Med. Ctr., Inc., 71 So. 3d 828, 838 (Fla. 2011) (citation

omitted). “All parts of the statute must be given effect, and the

Court should avoid a reading of the statute that renders any part

meaningless. Moreover, ‘all parts of a statute must be read

together in order to achieve a consistent whole.’” Searcy, Denney,

Scarola, Barnhart & Shipley v. State, 209 So. 3d 1181, 1189 (Fla.

2017) (citations omitted).

“[T]he purpose of a temporary injunction is to preserve the

status quo while final injunctive relief is sought.” Planned

Parenthood of Greater Orlando, Inc. v. MMB Props., 211 So. 3d

918, 924 (Fla. 2017). A temporary injunction is an extraordinary

remedy that should be granted sparingly. Sch. Bd. of Hernando

Cty. v. Rhea, 213 So. 3d 1032, 1040 (Fla. 1st DCA 2017). To obtain

a temporary injunction, the movant must establish (1) a

substantial likelihood of success on the merits, (2) a lack of an

adequate remedy at law, (3) the likelihood of irreparable harm

absent the entry of an injunction, and (4) that injunctive relief will

serve the public interest. Id.; see also Gainesville Woman Care,

LLC, 210 So. 3d at 1258.

The movant must prove each element with competent,

substantial evidence. SunTrust Banks, Inc. v. Cauthon &

McGuigan, PLC, 78 So. 3d 709, 711 (Fla. 1st DCA 2012). “Clear,

definite, and unequivocally sufficient factual findings must

support each of the four conclusions necessary to justify entry of a

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preliminary injunction.” City of Jacksonville v. Naegele Outdoor

Advert. Co., 634 So. 2d 750, 754 (Fla. 1st DCA 1994). If the party

seeking the temporary injunction fails to prove one of the

requirements, the motion for injunction must be denied. Genchi v.

Lower Fla. Keys Hosp. Dist., 45 So. 3d 915, 919 (Fla 3d DCA 2010).

Here, for the reasons that follow, Bayfront failed to prove with

competent, substantial evidence the substantial likelihood of

success on the merits and likelihood of irreparable harm elements

required for an injunction. As such, we need not decide whether

Bayfront proved the remaining requirements for entry of the

temporary injunction.

Substantial Likelihood of Success on the Merits

Appellants argue in part that the trial court erred by finding

that Bayfront established a substantial likelihood of success on the

merits of its claim. We agree. “A substantial likelihood of success

on the merits is shown if good reasons for anticipating that result

are demonstrated. It is not enough that a merely colorable claim is

advanced.” City of Jacksonville, 634 So. 2d at 753, approved sub

nom. Naegele Outdoor Advert. Co., Inc. v. City of Jacksonville, 659

So. 2d 1046 (Fla. 1995); see also Heslop v. Moore, 716 So. 2d 276,

279 (Fla. 3d DCA 1998).

Bayfront argued, and the trial court ruled, that pursuant to

section 395.4025(5), the Department may not accept a LOI or

accept, review, and/or provisionally grant a trauma center

application when there is no need (i.e., an open slot) for a trauma

center in the TSA. This matter necessitates a brief review of the

statutory scheme. Section 395.4025(2) governs the submission of

a LOI and application and the ensuing provisional review of the

application, and in pertinent part it requires the Department to

notify each hospital that it is accepting LOIs, to send an

application package to all hospitals that submitted a LOI, and to

conduct a provisional review of each timely submitted application

to determine whether the application is complete and the hospital

has the critical elements required for a trauma center. The

provisions of subsection (2) do not confer discretion on the

Department and require it to invite and accept a LOI and to accept,

provisionally review, and provisionally grant an application

without regard to need. Notably, section 395.4025(2)(d)1.

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authorizes the Department to grant an extension of time to an

applicant if the number of applicants in the TSA is equal to or less

than the service area allocation, not if the number of applicants is

equal to or less than the number of open slots, which further

evinces that the Legislature considers need irrelevant at the

provisional review stage of the application process. Section

395.4025(3) provides that after April 30, any hospital whose

application has been provisionally approved shall be eligible to

operate as a provisional trauma center. Section 395.4025(4)

governs the in-depth review of applications.

Section 395.4025(5), Florida Statutes, governs the onsite visit

by a review team of out-of-state experts and contains the following

provision, which is at the heart of the issue: “In addition, hospitals

being considered as provisional trauma centers shall meet all the

requirements of a trauma center and shall be located in a trauma

service area that has a need for such a trauma center.” The trial

court and Bayfront focused on the word “provisional” in that

sentence in interpreting the statute as prohibiting the Department

from processing and approving an application at the provisional

review stage when there is not an open trauma center slot in the

TSA.

The statutory context indicates that section 395.4025(5) is not

intended to make need a criteria at or before the provisional review

stage. For one, the provision is found in the subsection that

governs the onsite review stage; by then, the applicant is

considered and operating as a provisional trauma center and is

being considered for licensing as a trauma center—indeed, the

provision does not read, “hospitals being considered for provisional

trauma center status.” Relatedly, the provision requires an

applicant to meet all the requirements of a trauma center, in

addition to be located in a TSA that has a need, whereas an

applicant at the provisional review stage need only have submitted

a timely and complete application and have the critical elements

required for a trauma center. The Legislature’s definition of

“provisional trauma center” as “a hospital that has been verified

by the department to be in substantial compliance with the

requirements in s. 395.4025 and has been approved by the

department to operate as a provisional Level I trauma center,

Level II trauma center, or pediatric trauma center” supports this

10

interpretation. See § 395.4001(10), Fla. Stat. (2016) (emphasis

added). Further, Bayfront’s and the trial court’s reading of the

provision is contrary to the subsections that precede it, which

impose specific requirements on applicants and the Department,

but do not impose need as one of the prerequisites for submitting,

accepting, reviewing, or provisionally granting an application, nor

allow need to enter into consideration. See, e.g., Searcy, Denney,

Scarola, Barnhart & Shipley, 209 So. 3d at 1189 (explaining that

all parts of a statute must be given effect and must be read

together to achieve a consistent whole). For all these reasons,

section 395.4025 is clear and does not require or permit the

Department to consider need until the onsite review stage of the

application process.

Florida Administrative Code Rule 64J-2.012(1)(a) does not

compel a different conclusion as it requires the Department to

accept a timely LOI and simply adds that the LOI is non-binding,

but preserves the hospital’s right to complete an application if a

trauma center position is available in the TSA. While the phrasing

of the rule may seem to support Bayfront’s position, it does not

state that a hospital may submit—or, more importantly, that the

Department may accept, review, or provisionally grant—an

application only if there is an available position, which is how the

trial court interpreted it. Indeed, rule 64J-2.012(1)(b) requires the

Department to send an application package to hospitals that

submitted a LOI, and nothing in rule 64J-2.012 requires or allows

the Department to consider need at or before the provisional

review stage. The tiebreaking procedure found in rule 64J-

2.016(11) further supports this interpretation given that it reflects

that the number of provisional trauma centers eligible for selection

at the end of the application process may exceed the number of

trauma centers allocated by rule 64J-2.010(3). As such, Bayfront

failed to demonstrate a substantial likelihood of success on the

merits of its claim relating to need.

Bayfront also argued, and the trial court found, that

Northside cannot begin operations as a provisional trauma center

until the conclusion of all administrative proceedings. Section

395.4025 provides that “[a]fter April 30, any hospital that

submitted an application found acceptable by the department

based on provisional review shall be eligible to operate as a

11

provisional trauma center.” § 395.4025(3), Fla. Stat.; see also Fla.

Admin. Code R. 64J-2.012(1)(g)1. (providing that the Department

shall notify each hospital that passed the provisional review

process that “the hospital shall operate as a Provisional trauma

center beginning May 1”). Section 395.4025(7), Florida Statutes,

provides that “[a]ny hospital that wishes to protest a decision made

by the department based on the department’s preliminary or in-

depth review of applications or on the recommendations of the site

visit review team pursuant to this section shall proceed as

provided in chapter 120,” but it does not state what effect an

administrative challenge has on a provisional trauma center

beginning operation. The parties cited and we found no statute,

rule, or appellate decision directly on point. Section 395.4025 sets

forth a definite timeline for the trauma center application process

and requires a hospital to establish a trauma center prior to

submitting an application. It is unclear how a stay on a provisional

trauma center’s operations would affect the statutory timeline and

it would likely endanger the viability of the provisional trauma

center because it would be forced to sit idly while any

administrative proceeding concludes. Additionally, the cases

before us are unique in that the Department had not even received

Northside’s application at the time of the filing of Bayfront’s

complaint and motion for temporary injunction and ultimately

denied the application at the provisional review stage. As such,

we find that Bayfront’s assertion that Northside cannot begin

operations as a provisional trauma center until the conclusion of

all administrative proceedings is at most a merely colorable claim.

Therefore, Bayfront failed to establish a substantial likelihood of

success on the merits of its claim and the trial court erred by

finding otherwise.

Irreparable Harm

Appellants also argue that the trial court erred by finding that

Bayfront established that without temporary injunctive relief, it

would be irreparably harmed by the provisional approval of

Northside’s application and Northside’s immediate trauma

operations on May 1st. We agree.

“Irreparable injury will never be found where the injury

complained of is ‘doubtful, eventual or contingent.’” Jacksonville

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Elec. Auth. v. Beemik Builders & Constructors, Inc., 487 So. 2d 372,

373 (Fla. 1st DCA 1986) (citation omitted); see also Biscayne Park,

LLC v. Wal-Mart Stores E., LP, 34 So. 3d 24, 26 (Fla. 3d DCA 2010)

(“Wal-Mart’s alleged injury was its possible monetary liability

resulting from possible future contamination to groundwater

through the wells. ‘[T]his court has previously held that the

granting of injunctive relief is improper when a plaintiff’s right to

recover is based upon a future event,’ [citation omitted]; in this

case, the future event is the possible future contamination of the

groundwater through the wells. Because the alleged injury is

speculative, we conclude that it is insufficient to meet the

irreparable injury standard.”).

In addition, money damages and loss of business to a

competitor generally will not suffice to demonstrate irreparable

injury. Agency for Health Care Admin. v. Cont’l Car Servs., Inc.,

650 So. 2d 173, 175 (Fla. 2d DCA 1995); see also Stand Up for

Animals, Inc. v. Monroe Cty., 69 So. 3d 1011, 1013 (Fla. 3d DCA

2011) (explaining that irreparable harm is not established where

the harm can be compensated for adequately by money damages

and that a judgment for money damages is adequate even where

the party alleges that the opposing party may dissipate assets and

a money judgment might be uncollectable). However, “evidence of

the potential destruction of a business, without a track record from

which to calculate the potential loss and with harm of a continuing

nature, may in some cases provide sufficient indicia of irreparable

harm to support temporary injunctive relief.” U.S. 1 Office Corp.

v. Falls Home Furnishings, Inc., 655 So. 2d 209, 210 (Fla. 3d DCA

1995) (affirming the order granting the appellee’s motion for

temporary injunction because the record supported the conclusions

that the appellee faced the destruction of its business, it would be

difficult to find a basis from which to calculate damages given the

absence of a track record, and the harm was ongoing) (citations

omitted).

Here, the trial court found that the irreparable harms to

Bayfront, once Northside begins operating as a trauma center

prior to the conclusion of any administrative challenge, are

economic harm due to the dilution of trauma patients, increased

difficulty in hiring qualified trauma staff due to competition,

increased difficulty in maintaining qualified trauma staff due to

13

the decreased volume of trauma patients, and decreased quality of

trauma care due to the dilution of trauma patients. We conclude

that the trial court’s finding of irreparable harm is erroneous for a

number of reasons. First, all the harms were contingent on the

future event of the Department provisionally approving

Northside’s application. In fact, Gillette conceded that the

Department’s action of receiving and reviewing Northside’s

application does not pose any harm and there is no adverse impact

until the application is approved, and the Department ultimately

denied Northside’s application. Accordingly, the alleged harms

cannot constitute irreparable injury.

Second, case law is clear that economic harm does not

constitute irreparable injury; that is, loss of business and money

damages due to a decrease in patient volume do not suffice to

demonstrate irreparable injury. To the extent the trial court relied

on the exception recited in U.S. 1 Office Corp., that exception is

inapplicable because it is undisputed that there was no evidence of

the potential destruction of Bayfront’s business and Bayfront has

a track record from which to calculate losses.

As for the remaining harms of increased difficulty in hiring

and maintaining qualified trauma staff and decreased quality of

trauma care, the trial court’s findings are not supported by

competent, substantial evidence. The evidence established that

Bayfront made some assumptions in estimating that it would lose

905 of its 2,725 patients, non-compete clauses prevented

Bayfront’s trauma surgeons from going to work for Northside, the

trauma positions at Northside were already filled, and Bayfront

was able to maintain its patient volume and quality of care after

two new trauma centers opened in its vicinity. The Department’s

representative testified that 36.35% of severely injured patients in

TSA 9 do not receive care in a trauma center and that despite much

discussion over the years about the quality of care declining at

existing trauma centers as a result of new trauma centers opening

nearby, the Department has not received any evidence indicating

such and experts have testified that the quality of care did not

diminish. Barquist similarly testified that the literature does not

indicate what happens to a trauma center’s quality of care when

its patient volume decreases due to a new competitor and that

every existing trauma center has continued to operate after

14

unsuccessfully challenging provisional trauma centers. For these

reasons, the trial court erred by finding that Bayfront established

irreparable harm absent an injunction.

Based on the foregoing, we reverse and remand for further

proceedings consistent with this opinion.

REVERSED and REMANDED with directions.

MAKAR and OSTERHAUS, JJ., concur.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

Sarah Young Hodges, Chief Appellate Counsel, Florida

Department of Health, Tallahassee; William Dean Hall III, Jones

Walker, LLP, Tallahassee, for State of Florida, Department of

Health.

Raoul G. Cantero, David P. Draigh, and Ryan A. Ulloa, White &

Case LLP, Miami; Stephen A. Ecenia, J. Stephen Menton, and

Gabriel F.V. Warren, Rutledge Ecenia, Tallahassee; Thomas E.

Warner, Dean A. Morande, and Michael D. Sloan, Carlton Fields

Jorden Burt, P.A., West Palm Beach, for Galencare, Inc. d/b/a

Northside Hospital.

Geoffrey D. Smith and Timothy B. Elliott, Smith & Associates,

Tallahassee, for Appellee, Bayfront HMA Medical Center, LLC

d/b/a Bayfront Health – St. Petersburg.

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