CHRISTOPHER BARIANA, D.O. v. FLORIDA HEALTH SCIENCES CENTER, INC., d/b/а TAMPA GENERAL HOSPITAL, and TAMPA GENERAL MEDICAL GROUP, INC., a Florida corporation
No. 2D2024-1355
DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
May 16, 2025
MORRIS, 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
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
On February 23, 2024, Tampa General filed an emergency motion for temporary injunctive relief pursuant to
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 intо, 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 arе 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 othеr person‘s or company‘s use or benefit, or induce or help to induce any Physician, consultant or
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
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 patiеnt 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.
... 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 prоtection 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 nonсompete provision is invalid under
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
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)).
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.
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 wаy 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.
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.
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 unenfоrceable 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.
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 comрlex 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.
Dr. Espinola was asked about the specific needs for Dr. Bariana‘s services in Pinellas County, аnd 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 alsо 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
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 prаctice “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 cеrtainly, 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
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 actuаl 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
Even if
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.
ATKINSON, J., Dissents with opinion.
ATKINSON, Judge, Dissenting.
I respectfully dissent.
Additionally, a fair reading of the language of
The language of
I would affirm the order granting the injunction.
Opinion subject to revision prior to official publication.