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

6
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

8
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

12
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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