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. GALENCARE, INC. d/b/a NORTHSIDE HOSPITAL, Appellant, v. BAYFRONT HMA MEDICAL CENTER, LLC d/b/a BAYFRONT HEALTH-ST. PETERSBURG, Appellee.
No. 1D17-2174
No. 1D17-2229
First District Court of Appeal State of Florida
January 2, 2018
LEWIS, J.
On appeal from the Circuit Court for Leon County. Karen A. Gievers, Judge.
January 2, 2018
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 apprоval 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
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
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 thаt 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, 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 thе 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
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 exрerience 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.
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.”
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.”
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 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).
“[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 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
The statutory context indicates that
Bayfront also argued, and the trial court found, that Northside cannot begin operations аs a provisional trauma center until the conclusion of all administrative proceedings.
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 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 plaintiffs 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 additiоn, 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 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
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 оf 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 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 fоr 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
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.