In re: Amendments to the Florida Small Claims Rules

The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

Florida Hematology & Oncology Specialists v. Rambabu Tummala

SC06-993

ALL RISE.
HEAR YE, HEAR YE, HEAR YE.
THE SUPREME COURT OF FLORIDA
IS NOW IN SESSION.
ALL WHO HAVE BUSINESS BEFORE
THIS COURSE, DRAW NEAR, GIVE
ATTENTION AND YOU SHALL BE
HEARD.
GOD SAVE THESE UNITED STATES,
THE GREAT STATE OF FLORIDA
AND THIS HONORABLE COURT.
>> GOOD MORNING.
>> GOOD MORNING.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING AND WELCOME
TO THE FLORIDA SUPREME
COURT.
FOR OUR ORAL ARGUMENT
CALENDAR FOR WEDNESDAY APRIL
18th.
THE FIRST CASE ON OUR
CALENDAR IS THE FLORIDA
HEMATOLOGY AND ONCOLOGY
SPECIALIST CASE.
MR. McTPHAOEPL, ARE YOU
READY TO PROCEED.
>> YES, YOUR HONOR.
>> MAY IT PLEASE THE COURT
I'M GREG McNEILL HERE ON
BEHALF OF THE PETITIONER.
IT'S THE PETITIONER'S
POSITION IN THIS PARTICULAR
CASE THAT THE FIFTH DISTRICT
COURT OF APPEAL ERRED WHEN
IT CONSTRUED FLORIDA STATUE
542.335 TO EXCLUDE THE
ABILITY OF A MEDICAL
PRACTICE TO PROTECT ITS
RELATIONSHIPS WITH REFERRAL
PHYSICIANS.
>> HOW DO WE HAVE
JURISDICTION OVER THIS CASE?
>> YOUR HONOR YOU HAVE
JURISDICTION PURSUANT TO THE
CONFLICT BETWEEN THE FIFTH
DISTRICT COURT OF APPEAL'S
OPINION AND THE CASE AT BAR
AND THE THIRD DISTRICT COURT
OF APPEAL AND THE SOUTHERN
MOST FOOT CASE AS WELL AS
THE THIRD DISTRICT COURT OF
APPEAL'S OPINION IN OPEN
MAGNETIC IMAGING.
IN THE SOUTHERN FOOT CASE,
WAS REFERRING PHYSICIAN A
PART OF THE DECISION IN
HOLDING IN THAT CASE?
I SEE IT REALLY SPEAKS AS TO
TIME LIMITATION DUE TO
GRAPHIC CONSTRAINTS AND THAT
PRIVILEGE IS.
I DON'T SEE ANYTHING OTHER
THAN REFERENCING THE TRIAL
COURTS ORDER THAT THERE'S A
SPECIFIC HOLDING
REGARDING -- REFER
PHYSICIANS?
>> YOUR HONOR, THERE WAS NO
PARTICULAR ANALYSIS DONE OF
THE ISSUE OF REFERRAL
PHYSICIAN COULD BE A
LEGITIMATE BUSINESS INTEREST
UNDER THE STATUTE.
THE THIRD DCA AFFIRMED THE
TRIAL COURT WHO FOUND
BUSINESS INTEREST AND
REFERRAL PHYSICIAN.
HAS ANYONE -- DID ANYONE
MAKE AN ARGUMENT IN THIS
CASE THAT RESTRICTION SUCH
AS THIS IN THE MEDICAL
PROFESSION HAVE SIGNIFICANT
PUBLIC POLICY IMPLICATIONS
THAT WOULD DIFFERENT FROM IF
YOU USED ANALOGY OF
RELATIONSHIPS OF DIFFERENT
DOCTORS AND I SEE THAT IT'S
WORLDS APART.
YOU KNOW, LAWYERS CONDUCT
AND HAVING SUCH.
HAS THAN BEEN RAISED, THOSE
ISSUES?
>> YOU'RE HONOR I DON'T
THINK THAT ISSUE IS DIRECTLY
IN FRONT OF THE COURT.
HOWEVER, YOU ARE CORRECT IN
MANY OPINIONS IN THIS STATE
THAT WITH CUFFNANCE AGAINST
RESTRICTION THE PUBLIC
POLICY ARGUMENT IS OFTEN
RAISED.
IS IT AGAINST THE PUBLIC
INTEREST?
TO MY KNOWLEDGE, THERE HAS
OBVIOUSLY BEEN ONE CASE FROM
1976 THAT INVOLVED THE
RESTRICTIONS ON A SURGEON IN
THE FLORIDA KEYS WHERE THE
COURT EXPRESSLY FOUND THAT
TO ENJOIN THAT SURGEON WOULD
BE AGAINST THE PUBLIC
INTEREST BECAUSE OF THE
SCARCITY OF THAT --
>> THAT WOULD ONLY COME UP
AFTER THE DETERMINATION IS
MADE AS TO WHETHER THERE'S A
LEGITIMATE BUSINESS
INTEREST.
>> PRESUMABLY, YES.
>> THAT'S -- THAT'S WHAT
WE'RE REALLY HERE ON THIS
THRESHOLD ISSUE.
IS IT YOUR POSITION THAT
THIS IS A MATTER OF
STATUTORY CONSTRUCTION?
>> E YES, IT IS AND HERE ON
DE NOVO REVIEW.
SO IN -- WHAT DID THE FIFTH
DISTRICT GET IT WRONG AS FAR
AS THEIR ANALYSIS?
>> I BELIEVE THE FIFTH
DISTRICT COURT OF APPEALS
IT'S A PETITIONER'S POSITION
THAT THEY CONSIDERED THE
OPINION OF THE FIRST DCA AND
EVEN THOUGH THE FACTS OF
SANAL WERE SIGNIFICANTLY
DIFFERENT WHAT THE FIFTH
CONCLUDED BECAUSE SAL CAN'T
HAVE UNEFFECTED PATIENTS WE
DON'T KNOW HOW TO PROTECT
REFERRAL PHYSICIANS BECAUSE
AT THE END OF THE DAY THAT'S
WHAT A REFERRAL PHYSICIAN IS
GIVING THE PRACTICE.
>> LET ME ASK YOU ABOUT THIS
REFERRAL PHYSICIANS.
AND IT FOES BACK ARE REALLY
TO THE PUBLIC POLICY
QUESTION THAT WAS ASKED
EARLYER.
BUT WAS THERE ANY ARGUMENT
MADE CONCERNING WHETHER OR
NOT BECAUSE THESE REFERRING
PHYSICIANS ARE NOT A PART OF
THE COVENANT THAT THE OTHER
PHYSICIANS ENTERED INTO.
H WE SOMEHOW -- IS THERE
SOME PUBLIC POLICY QUESTION
ABOUT WHETHER OR NOT WE
WOULD BE RESTRICTING
ACTUALLY -- THE REFERRING
PHYSICIANS ABILITY TO
PRACTICE?
>> THE ARGUMENT THAT WASN'T
EXPRESSLY MADE.
HOWEVER, I DON'T KNOW THAT
THERE'S A CON SEPIAL
DIFFERENCE BETWEEN A TPEFRING
PHYSICIAN AND A CUSTOMER FOR
EXAMPLE IN ANOTHER
NONCOMPETE SITUATION.
CLEARLY THE CUSTOM MANIER IS
NOT BOUND BY THE RESTRICTED
COVENANT.
HOWEVER THE COURTS HAVE
UNIFORMALLY ENFORCED
RESTRICTIVE CUFFNANCE TO
PRECLUES THE SALES PERSON
FOR EXAMPLE FROM CALLING ON
ACCEPTING BUSINESS FROM A
CUSTOMER IN THEIR FORMER
TERRITORY EVEN THOUGH
THAT --
>> DON'T YOU SORT OF SEE
THIS REALLY IN A DIFFERENT
LIGHT WHEN YOU'RE TALKING
ABOUT THE MEDICAL PROFESSION
AND A PATIENT AND THE
REFERRING PHYSICIANS.
IT SEEMS VERY INTERESTING TO
ME YOU CAN ENTER INTO THESE
KINDS OF AGREEMENTS AND A
PATIENT, EVEN THE PATIENT
WHICH IS NOT REALLY AN ISSUE
HERE DOESN'T HAVE THE RIGHT
TO GO TO THE PHYSICIAN THAT
HE OR SHE MAY WANT TO GO.
>> YOUR HONOR, I UNDERSTAND
THE POSITION.
THERE'S ONLY ONE APPELLANT
COURT CASE THAT I'M AWARE OF
WHERE A TRIAL COURT REFUSED
TO ENTER AN INJUNCTION
AGAINST A DOCTOR BASED
SOLELY ON PATIENT SELECTION.
BASICALLY SELECTION DECISION
ABOUT WHAT DOCTOR THEY
WANTED TO CHOOSE.
AND I APOLOGIZE.
THE CASES ESCAPES ME.
THE TRIAL COURT WAS REVERSED
FIND PAIN -- PATIENT'S RIGHT
TO CHOOSE WAS BASIS TO
DENIAL FOR INJUNCTIVE
RELIEF.
YOU WERE IN THE MIDDLE OF
EXPLAIN HOW THE FIFTH DCA
GOT IT WRONGED AS SHE
PHRASED IF QUESTION.
IT'S OUR POSITION THAT
BECAUSE SANAL INVOLVED ONLY
WHETHER OR NOT A MEDICAL IN
THIS CASE, THE UNIVERSITY
HOSPITAL IN JACKSONVILLE
WHETHER IT HAD A LEGITIMATE
BUSINESS INTEREST IN UNKNOWN
PERSPECTIVE PATIENTS.
IN THIS CASE IT WAS A
50-MILE GEOGRAPHICAL RADIUS
AND THE FIRST DCA AND
AFFIRMING THE TRIAL COURT'S
DENIAL OF INJUNCTIVE RELIEF
SAID YOU CAN'T HAVE A
LEGITIMATE BUSINESS INTEREST
IN UNKNOWN PERSPECTIVE
PATIENTS ANYWHERE IN THE
50-MILE RADIUS FOR TWO
YEARS.
WHAT OUR POSITION IS THAT
YOU CAN ADDRESS THE CONCERNS
OF SANAL IN OUR CASE AND
STILL PROTECT LEGITIMATE
BUSINESS INTERESTS OF THE
PRACTICE.
>> IN SANAL THERE WASN'T AN
ISSUE WITH REGARD TO
REFERRING PHYSICIANS AT ALL.
>> AT ALL.
>> LOOK AT THAT DECISION AND
THEY WERE TALKING IN TERMS
OF JUST BORROWING
COMPETITION WITH ANYONE.
THAT DECISION CAN STILL
STAND WITHIN YOUR ARGUMENT.
THEY DIDN'T ADDRESS IT AT
ALL THE SAME.
>> ABSOLUTELY YOUR HONOR.
IN SANAL THERE WAS NO
EVIDENCE THERE WAS A DECLINE
IN THE ONCOLOGY PRESENCE AND
NO EVIDENCE THAT DR. SA IN
AL SOLICITED REFERRALS FROM
ANY PRIORITY SOURCES.
>> THE FIRST DCA INCLUDED
THOSE FACT IN THE
PARTNERSHIP.
>> SO THE RELIANCE IN SANAL
IS MISPLACED.
LET'S GET BACK TO THE
STATUTORY CONSTRUCTION
QUESTION.
IS IT YOUR POSITION THAT THE
WHERE WE HAVE TO LOOK TO SEE
WHETHER THERE'S A LEGITIMATE
BUSINESS INTEREST IS UNDER
11:00 SECTION 3 WHICH HAS TO
DO WITH SUBSTANTIAL
RELATIONSHIPS WITH SPECIFIC
PERSPECTIVE OR SPECIFIC
CUSTOMERS PATIENTS OR
CLIENTS.
>> NO, YOUR HONOR.
BECAUSE THE STATUTE IS
WORDED AS "AS INCLUDES BUT
NOT LIMITED TO."
>> THEN WE WOULD HAVE TO
EXTRAPOLATE FROM THE LIST OF
WHAT IS THERE TO SAY THAT A
REFERRAL RELATIONSHIP IS IN
THE SAME CATEGORY AS THAT
BUT YOU STILL HAVE TO SHOW
THAT IT'S A SUBSTANTIAL
RELATIONSHIP WITH A SPECIFIC
PERSPECTIVE OR EXISTING
REFERRAL DOCTOR.
IN OTHER WORDS, OR IS IT YOU
CAN JUST BAN REFERRAL
RELATIONSHIP HERE.
DO YOU UNDERSTAND WHAT I'M
SAYING?
>> I TO.
>> IF YOU DON'T GO ON THREE,
DO YOU JUST REFERRAL
RELATIONSHIPS ARE LIKE TRADE
SECRETS.
WE'RE JUST GOING TO PROTECT
THEM OR DO YOU STILL HAVE TO
USE A SUBSTANTIAL
RELATIONSHIP LANGUAGE AND
HOW DO YOU -- I'M TRYING TO
THINK OF THE STATUTORY
CONSTRUCTION PRINCIPLE THAT
ALLOWS YOU TO PICK AND
CHOOSE WHAT TERMS YOU USE?
>> I WOULD SUGGEST THAT THE
COURT IS NOT CONSTRAINED BY
THE LANGUAGE OF THE STATUTE
IN THE PREDICATE IS THAT
LEGITIMATE BUSINESS INTEREST
INCLUDE BUT ARE NOT LIMITED
TO AND THEN IN THE
LEGISLATURE DOES SET FORTH
SEVERAL CATEGORIES OF
EXAMPLES.
IF -- CERTAINLY THERE ARE
SIMILAR LATERITIES BETWEEN
THE REFERRAL PHYSICIAN
RELATIONSHIP WHICH IS A
KNOWN SPECIFIC IDENTIFIABLE
RELATIONSHIP.
AND SPECIFIC CLIENTS
CUSTOMER AND PATIENT.
THERE'S NO QUESTION THERE.
I DON'T BELIEVE BECAUSE THE
LANGUAGE OF THE STATUTE YOU
ARE LIMITED TO TRYING TO
FIND ONE OF THOSE CUBBIE
HOLES IF YOU WILL TO MAKE
YOUR INTEREST FIT INTO.
KIND OF WHAT BOTHERS ME
ABOUT THIS STATUTE IS THAT
HISTORICALLY MY RECOLLECTION
IS THAT IN FLORIDA THE
COVENANCE NOT TO COMPETE OR
TO BE CONSTRUED NARROWLY
BECAUSE THEY WERE IN
RESTRAINT OF TRADE.
THE STATUTE SPECIFICALLY
DICTATES A METHOD OF
CONSTRUCTION IN THIS STATUTE
THAT AWAY WITH THAT
REASON -- WITH THAT LINE OF
CASES.
I WONDER HOW FAR THIS COURT
CAN GO WITHOUT RUNNING INTO
A CONSTITUTIONAL PROBLEM IF
IT IS CONSTRUES THIS STATUTE
SO BROADLY THAT, IN FACT, IT
DOES RESTRAIN TRADE IN
VIOLATION OF THE
CONSTITUTION.
HOW FAR CAN WE GO?
>> YOUR HONOR I THINK WHAT
THE LEGISLATURE INTENDED BY
THE LANGUAGE OF THE STATUTE
IS THAT IF A PROPONENT OF A
RESTRAINING TRADE CAN PLEAD
AND PROVE A LEGITIMATE
BUSINESS INTEREST WHATEVER
THAT'S DEFINED TO MEAN THEN
A RESTRICTIVE COVENANT SO
LONG AS IT IS REASONABLE
FOLLOWING THE CASE LAW THAT
DEFINES REASONABLENESS WAS
AVAILABLE TO RESTRAIN
COMPETITION.
I THINK THE BURDEN IS ON
THE -- IN MY CASE THE
PETITIONER HERE TO PLEAD AND
PROVE THE LEGITIMATE
BUSINESS INTEREST THAT
REQUIRES TO BE PROTECTED.
I DON'T BELIEVE THAT AND
IT'S CLEAR IN THE LANGUAGE
OF THE --
>> THAT'S A LEGITIMATE
BUSINESS INTEREST OTHER THAN
WHAT IS SPECIFIED IN THE
STATUTE?
>> YES, YOUR HONOR.
SIMPLY BECAUSE THE
LEGISLATURE CHOSE TO
LEAD -- LEAVE THE STATUTE
OPEN ENDED AS TO LEGITIMATE
BUSINESS INTEREST WHICH
MIGHT BE ABLE TO BE
SUGGESTED, PLED, PROVED TO
THE SATISFACTION OF THE
TRIAL COURT.
>> IN DECIDING WHAT IS A
LEGITIMATE BUSINESS INTEREST
IN THIS CONTEXT AND
BALANCING THE EMPLOYERS
LEGITIMATE BUSINESS INTEREST
AGAINST THE DOCTORS ABILITY
TO PRACTICE THIS TRADE, WHY
ISN'T IT APPROPRIATE TO MAKE
A DISTINCTION BETWEEN
REFERRAL PHYSICIANS WHO WERE
ALREADY REFERRING PATIENTS
TO THE EMPLOYER AT THE TIME
THAT DR. TUMMALA BEGAN HIS
EMPLOYMENT AND THOSE THAT
REFERRED TO THE EMPLOYER
BECAUSE DR. TUMMALA ARRIVED
THERE AND WERE DOING IT
AFTER HIS ARRIVAL
SPECIFICALLY DR. TUMMALA.
WHY ISN'T YOUR LEGITIMATE
BUSINESS INTEREST LIMITED TO
THOSE REFERRAL PHYSICIANS
THAT WERE REFERRING BEFORE
TUMMALA'S ARRIVAL.
>> WELL IN, THIS PARTICULAR
CASE, YOUR HONOR,
DR. TUMMALA HAD NEVER LIVED,
WORKED OR PRACTICED MEDICINE
IN LAKE COUNTY, FLORIDA
WHICH IS THE OFFICE THAT HE
JOINED OF THE PRACTICE WHEN
HIS STARTED.
IT WAS HIS FIRST PRIVATE
PRACTICE.
HE HAD NO RELATIONSHIPS WITH
ANY REFERRAL PHYSICIANS
PRIOR TO JOINING THE
PRACTICE AND UNDER HIS
EMPLOYMENT AGREEMENT HE WAS
REQUIRED TO DEVELOP TORE THE
BENEFIT OF THE PRACTICE
THOSE REFERRAL RELATIONSHIPS
AND DID SO FOR EIGHT YEARS
WHILE HE WAS COMPENSATED AND
ENCOURAGED AND REIMBURSED
FOR THOSE ACTIVITIES.
THAT WAS THE EVIDENCE THAT
THE TRIAL COURT BELOW.
SO AFTER EIGHT YEARS OF
PRIVATE PRACTICE WITH THIS
PARTICULAR PRACTICE HE THEN
STARTS HIS OWN IN THE SAME
TOWN AND IMMEDIATELY BEGINS
UTILIZING THOSE REFERRAL
SOURCES THAT HE HAS
DEVELOPED BANKLY ON THE
EMPLOYER'S NICKEL FOR EIGHT
YEARS.
THOSE ARE THE FACTS THAT OUR
CASE.
I UNDERSTAND THE ARGUMENT
BUT WHAT ABOUT A DOCTOR WHO
HAD BEEN PRACTICING FOR 25
YEARS IN AN AREA AND THEN
JOINS A PRACTICE.
WHAT ABOUT THE RELATIONSHIPS
THAT MIGHT BE PREEXISTING
THERE?
>> YOU'RE LOOKING AT IT FROM
THE POINT OF VIEW OF THE
DOCTOR.
I'M LOOKING AT IT REALLY
FROM THE POINT OF THE VIEW
OF THE EMPLOYER AND THE
EMPLOYER'S LEGITIMATE
BUSINESS INTEREST.
I CAN SEE HOW YOU WOULD SAY
WE HAD 50 REFERRING
PHYSICIANS BEFORE HE GOT
HERE AND HE TOOK THEM ALL.
AND WE HAD DEVELOPED A
RELATIONSHIP WITH THOSE
PHYSICIANS AND WE
ESSENTIALLY GAY HIM THOSE
PHYSICIANS TO MANAGE WHILE
HE WAS HERE AND HE TOOK
THEM.
THAT'S NOT FAIR.
AS OPPOSED TO PHYSICIANS
THAT HE DEVELOPED WITH HIS
OWN SWEAT, OWN ABILITIES AND
MARKETING AFTER HE ARRIVED
THERE WHEN YOU'RE
DETERMINING WHAT A
LEGITIMATE BUSINESS INTEREST
IS AND LOOKING AT THE OTHER
EXAMPLES IN THE STATUTE, WHY
ISN'T THAT DISTINCTION
APPROPRIATE TO MAKE?
>> BECAUSE I DON'T THINK THE
STATUTE ANYWHERE DELINEATES
TEMPORARILY DELINEATES
BETWEEN EXISTING
RELATIONSHIPS PRIOR TO
EMPLOYMENT AND RELATIONSHIPS
DEVELOPED DURING EMPLOYMENT.
>> BUT I UNDERSTAND WHAT YOU
ARE SAYING.
IT SAYS SUBSTANTIAL
RELATIONSHIP WITH SPECIFIC
PERSPECTIVE OR EXISTING
CUSTOMERS PATIENTS OR
CLIENTS, SO IF WE AFALL
GUISE TO THAT AND
UNDERSTANDING THAT THIS IS
AN INCLUSIVE IT'S NOT
EXCLUSIVE LIST WHEN YOU TALK
ABOUT SUBSTANTIAL
RELATIONSHIPS, WHAT'S
SUBSTANTIAL RELATIONSHIPS DO
YOU HAVE WITH REFERRING
PHYSICIANS AND WHY ISN'T IT
LIMITED TO THOSE REFERRING
PHYSICIANS THAT YOU HAD
BEFORE HE BEGAN HIS
EMPLOYMENT THERE?
>> I WOULD ANSWER THE
QUESTION FROM THIS CASE IS
THAT THE RELATIONSHIPS WITH
REFERRAL PHYSICIANS THAT
WERE DEVELOPED BY
DR. TUMMALA WHILE AN
EMPLOYEE ARE REALLY
CONCEPTUALLY NO DIFFERENT
THAN A SALES PERSON WHO GOES
INTO A TERRITORY AND BEGINS
DEVELOPING CLIENTS AND
CUSTOMERS FOR THE EMPLOYER.
I'M NOT AWARE OF ANY CASE IN
FLORIDA WHERE THAT
DISTINCTION HAS BEEN USED TO
SAY, WELL THE SALESMEN
RELATIONSHIPS THAT HE
DEVELOPED WHILE WORKING FOR
THE EMPLOYER THOSE CAN'T BE
THE BASIS OF THE RESTRICTIVE
COVENANT.
IT'S ONLY THE RELATIONSHIPS
THAT THE EMPLOYER HAD PRIOR
TO HIRING THE SALESMAN THAT
CAN BE PROVIDED.
>> AREN'T YOU OVERLOOKING,
THOUGH THE DIFFERENCES IN
BUSINESSES AND PROFESSIONS
AND SOME THINGS THAT MIGHT
BE UNIQUE, FOR INSTANCE, TO
LAWYERS OR PHYSICIANS OR
WHATEVER YOU KNOW FOR THE
ORDINARY BUSINESS THAT'S
MANUFACTURERING WIGITS AND
THAT EVERYBODY GOES TO THAT
BUSINESS BECAUSE THEY LIKE
THEIR WIGIT AND THE
SALESMAN -- WHAT YOU
DESCRIBED MAY BE A PERFECTLY
APPLICABLE AND NOBODY WOULD
CONTROVERT THAT.
NOW WE'RE TALKING ABOUT
SOMETHING THAT IS REALLY
HIGHLY REFINED IN TERMS OF
THE SELECTION OF A
SPECIALIST OR A PHYSICIAN
AND LOTS OF OTHER THINGS GO
INTO A DECISION ABOUT
SELECTING A TREATING
PHYSICIAN, ESPECIALLY IN THE
ONCOLOGY FIELD.
WOULD YOU NOT?
>> YES, YOUR HONOR.
I WOULD.
IN FACT THERE'S SO MANY
DIFFERENT FACTORS WHICH DO
COME INTO PLAY, ONE OF THOSE
FACTORS FOR GOOD OR FOR BAD
IS THE INSURANCE COMPANY.
AND WHO THEY WILL PAY FOR
AND WHO THEY WILL NOT.
THAT OBVIOUSLY HAS NOTHING
TO DO WITH THE REFERRAL
PHYSICIAN, BUT THAT'S THE
FACT OF LIFE AND THE
PRACTICE OF MEDICINE IN
FLORIDA IN THE SPECIALTY
PRACTICE.
SO WHILE THERE ARE CERTAINLY
SOME DIFFERENCES BETWEEN THE
RELATIONSHIP BETWEEN A
PATIENT AND THE DOCTOR I
THINK THERE ARE SOME
BUSINESS PRINCIPLES WHICH
HAVE NOTHING TO DO WITH THAT
RELATIONSHIP.
AND IN YOUR RESEARCH AND I
REALIZE YOU'RE INTO YOUR
REBUTTAL TIME SO I WANT YOU
TO HIT THIS A WHACK.
HAVE YOU FOUND ANY CASE LAW
FROM OTHER JURISDICTIONS
THAT TREAT THIS UNIQUE REURP
THAT PHYSICIANS HAVE AND
REFERRING PHYSICIANS AND
THIS IN ANY CONTEXT.
IN OTHER WORDS YOU FOUND ANY
CASE LAW THAT WOULD SHED
SOME LIGHT ON WHAT WE'RE
TPWRAP LING WITH INSOFAR AS
TREATING THIS PROBABLY A
LITTLE BIT DIFFERENT THAN WE
WOULD TREAT THE BUSINESS OF
MAKING WIGIT IS.
WE HAVE CITED CASES THAT
RECOGNIZE -- I DON'T KNOW
THEY USE THE TERM LEGITIMATE
BUSINESS INTEREST IN THE
STATE OF HO -- HIO AND
VISITS WITH FOR EXAMPLE,
THAT HAVE A FIRM INJUNCTION
THAT PROTECT THE REFERRAL
RELATIONSHIPS.
>> HOW ABOUT CASES ON THE
OTHER SIDE.
>> THERE'S A CASE CITED BY
DR. TUMMALA'S ATTORNEYS FROM
OKLAHOMA WHICH IN THAT
PARTICULAR -- STATUTORY
SCHEME IS DIFFERENT.
BUT IN THAT PARTICULAR CASE
THEY BELIEVE THAT THE
RELATIONSHIP BETWEEN A
DOCTOR AND PATIENT WAS
SOMEHOW DIFFERENT ORGANCALLY
THAN OTHER TYPES OF
RELATIONSHIPS.
>> THAT'S THE ONLY CASE THAT
YOU'RE AWARE OF.
>> THAT'S THE ONLY CASE I'M
AWARE OF.
MY COUNSEL MAY HAVE OTHERS.
THAT'S THE ONLY CASE I'M
AWARE OF.
>> THE ONLY WAY TO DEAL WITH
CARVE OUT ISSUE FOR THIS
PROFESSION.
THAT'S THE ONLY WAY TO DEAL
WITH IT.
WE CAN'T APPLY THAT TO OTHER
PROFESSIONS IN.
THE SAME PRINCIPLE IS THERE.
>> IS THERE -- THERE ANY WAY
SHORT OF DOING THAT THIS CAN
BE ACCOMMODATED.
>> OUR POSITION IS THAT I
DON'T KNOW THERE IS.
IN A DOCTOR IS ALLOWED TO
TAKE ADVANTAGE OF THE
REFERRAL RELATIONSHIPS HE
DEVELOPS WHILE WORKING WITH
THE EMPLOYER THE ONLY WAY TO
PREVENT IS THAT PRECLUDE HIM
FROM TAKING REFERRALS BUT
NOT PRECLUDE THE DOCTOR FROM
TREATING UNKNOWN PERSPECTIVE
PATIENTS SLOW -- SO LONG AS
THEY DO COME BY WAY OF
PROHIBITED PEFRL.
>> I HAVE TO ASK THE
QUESTION.
I KNOW HOW LAWYER REFERRALS
WORK.
WHEN A DOCTOR REFERS THE
PATIENT, DO THEY THEN GET
MONEY FROM THE DOCTOR FOR
THE REFERRAL?
>> NO.
>> SO THE IDEA THAT AND THE
REFERRAL IS BASED ON WHETHER
THE DOCTOR WINES AND DINES
THE OTHER DOCTOR AS OPPOSED
TO -- WE'RE TALKING ABOUT
SOMEBODY THAT MIGHT HAVE
BREAST CANCER AND I WILL
FIND THE BEST PERSON IN THIS
AREA WHO HAS HAD THE BEST
TRAINING TO TREAT YOU.
THIS IS LIFE AND DEATH.
ARE YOU SANG -- SAYING THE
REFERRAL DOCTOR NOW CANNOT
TELL THE PATIENT WHO THE
BEST DOCTOR IN THE AREA IS
FOR TREATING THAT PARTICULAR
TYPE OF CANCER IF IT'S
SOMEBODY THAT WAS IN THIS
RESTRICTIVE RELATIONSHIP?
>> THAT WOULD BE THE EFFECT
OF ENFORCING THE RESTRICT
TOUGH COVENANT.
82 YOU DON'T SEE THAT AS I
GUESS WE WILL HAVE TOW AS
BEING A SIGNIFICANT PUBLIC
POLICY ISSUE AS FAR AS
PATIENT HEALTH AND IT'S IN
THEIR BEST INTEREST?
>> YOUR HONOR, IF THERE WAS
A LIMITATION IN, IN THE CASE
BELOW THERE WERE 60
ONCOLOLGIST WHO WERE
IDENTIFIED AT TRIAL COURSE
AS PRACTICING IN THIS AREA
WITHIN THIS TKPAOEO
PHOTOGRAPHIC AREA.
IT WASN'T LIKE THERE WAS A
LIMITATIONAL NUMBER OF
QUALIFIED DOCTORS IN THE
AREA.
BUT STRICTLY SPEAKING IT
WOULD PRECLUDE THAT
REFERRAL.
>> THANK YOU FOR YOUR TIME.
>> THANK YOU.
>> MAY IT PLEASE THE COURT
I'M CHRIS CARLYLE.
>> I'M HERE WITH SHANNON
CARLYLE ON BEHALF OF THE
RESPONDENT DR. TUMMALA.
>> CAN YOU ADRESS FIRST THE
ISSUE THAT JUSTICE BELL
RAISED WHICH IS THE ISSUE IN
READING OVER THIS THE ONLY
REFERENCE THAT I SEE TO
REFERRAL DOCTORS IS A NOTE
ON WHAT THE TRIAL COURT
FOUND.
THERE WAS NO EVEN FINDING IN
THE APPELLANT COURT ABOUT
REFERRAL DOCTORS.
IT WAS A COMPLETELY
DIFFERENT ISSUE.
>> I AGREE.
I POINT OUT IN OUR ANSWER
BRIEF THAT FUR -- YOU'RE
LOOKING AT JURISDICTION THIS
CASE IS ABOUT AS THIN AS YOU
WILL EVER HAVE A CASE
PRESENTED TO THIS COURT.
IF NOT TO THE INCLUSION OF
TWO WORDS IN THAT OPINION
WITHOUT ANY ANALYSIS
WHATSOEVER.
WITHOUT BITING ISSUE.
WE DON'T KNOW WHY THOSE
WORDS ARE IN THERE BUT THEY
UNDENIABLY ARE.
DO YOU SUGGEST THAT CASE
CAN'T BE CITED THAT THOSE
REFERRAL RELATIONSHIPS CAN
BE PROTECTED IN THAT
OPINION?
>> NO, YOUR HONEST HONOR.
AGAIN, IT'S THE QUESTION OF
A PARENT CONFLICT.
THIS COURT HAS I WOULD ADMIT
DISCRETION.
AN APPARENT CONFLICT CASE
LIKE THIS.
>> CAN SOMEONE POINT TO THAT
AND SAY THIS CASE AFFIRMS
THIS LANGUAGE.
AND THAT'S NOT A PRINCIPLE
OF LAW.
COULD YOU NOT CITE THAT IN
GOOD FAITH TO A COURT.
>> YES, YOUR HONOR.
AND, AGAIN, I WAS ASKED TO
ADDRESS THE ISSUE OF THE
CONFLICT HERE.
THIS COURT HAS DISCRETION TO
ACCEPT JURISDICTION IN CASES
OF THIS TYPE.
IT DOES SO OR HAS TO THIS
POINT IN THIS CASE, IT MUST
BE AWARE OF THAT.
THIS IS REMARKABLY THIN AS
FAR AS JURISDICTION GOES FOR
THIS COURT HOWEVER THE COURT
DOES HAVE THE ABILITY TO DO
THAT.
>> THIS CASE SEEMS TO
PRESENT THAT HEAD-ON
CONFLICT THAT OCCURS IN A
PARAGRAPH -- PRACTICE OF
PROFESSIONS BETWEEN THE
ECONOMIC REALITY AND THE
TRUE PROFESSION.
I'VE THINK YOU'VE HEARD FROM
THE BENCH CONCERN FROM
VARIOUS MEMBERS ABOUT THIS
IMPACT -- IMPACTS
PROFESSIONAL JUDGMENT AND
TREATMENT IN A VERY, VERY
LIFE THREATENING KIND OF
AREA.
IS IT POSSIBLE IN THIS CASE
TO SEPARATE IN ANY WAY THIS
CONCEPT OF PROFESSION FROM
JUST PURE RAW ECONOMICS?
>> BELIEVE SO YOUR HONOR.
>> HOW WOULD THAT BE DONE?
>> I THINK THAT THE BENCH
AND THE VARIETY OF QUESTIONS
ABOUT THE UNIQUE
RELATIONSHIP WE'RE TALKING
ABOUT HERE AND I THEIR WE
HAVE TO RECOGNIZE THAT.
THERE'S AN ENORMOUS
DIFFERENT BETWEEN THE
MEDICAL PROFESSION AND SALES
OF A CERTAIN PRODUCT.
>> BUT THERE'S NOT FOR
EXAMPLE -- YOU REPRESENT
YOURSELF AS AN APPELLANT LAW
FIRM.
MOST OF YOUR CASES
FROM -- COME FROM OTHER
LAWYERS; DO THEY NOT?
>> CORRECT.
>> WE'VE PROHIBITED THAT FOR
LAWYERS.
BUT I DID AN APPELLANT
PRACTICE.
I -- MY MOST IMPORTANT
CLIENTS WERE THE TRIAL
LAWYERS.
>> SURE.
I THINK THE KEY TO THE CASE
AND WHAT WE HE'D TO LOOK AT
IS THE STATUTE ITSELF IS
WHAT WE'RE CONSTRAINED BY.
THE JUSTIFICATION AND THE
HISTORY AS TO WHY THE
STATUTE EXISTS.
IT'S NOT ENOUGH TO SAY YES
THIS IS IMPORTANT.
WE NEED TO TAKE IT TO THE
LEVEL AND ANALYZE IT IN THE
CASE OF LEGITIMATE BUSINESS
INTEREST.
AND THE STATUTE IS CLEAR.
TO SUGGEST THAT THE
RELATIONSHIP WITH THE
REFERRING PHYSICIAN IS
SOMEHOW DIVORCED OR
SEPARATED FROM -- FROM THAT
PHYSICIAN PROVIDE MEANING
THE PATIENTS, IS SIMPLY
DOESN'T MAKE SENSE.
IF IT'S A SOCIAL
RELATIONSHIP YOU MAINTAIN
THAT IT'S NOT A BUSINESS
INTEREST.
THAT'S NOT WHAT WE ARE
TALKING ABOUT.
THE STATUTE IS CLEAR THAT
IF -- IF WHAT THEY PROVIDE
THOSE BE SPECIFIC
SUBSTANTIAL RELATIONSHIP
IDENTIFIABLE.
>> DO YOU AGREE THE STATUTE
THE RESSE IS TANION ARE NOT
EXCLUSIVE.
>> THE STATUTE SAYS
INCLUDING BUT NOT LIMITED
TO.
HOWEVER, IT'S OUR POSITION
THAT TO ACCEPT THE
PETITIONER'S POSITION IS TO
TAKE THAT PROVISION AND
ACCEPT THE OPPOSITE OF IT.
IF THE STATUTE HAS SOMETHING
SPECIFICALLY LISTED IN THE
STATUTE, YOU CAN'T THEN
ACCEPT SOMETHING NOT
LITT -- LISTED THAT CON TO
VACCINES.
>> IF THERE WAS NO OF YOUR
ARGUMENT I ASSUME IF THERE'S
NOT A SUBSTANTIAL
RELATIONSHIP THEN IT'S NOT A
LEGITIMATE BUSINESS
INTEREST.
>> THE ANSWER OR THE
ARGUMENT IS BASED ON THE
FIFTH DCA'S OPINION AND
SANAL WHICH SAID THE STATUTE
IS CLEAR.
AND THE RELATIONSHIP MUST BE
SUBSTANTIAL AND
IDENTIFIABLE.
>> THAT'S NOT WHO THE CASE
IS ABOUT, NOT PERSPECTIVE
CLIENTS OR PATIENT.
IT'S ABOUT THE REFERRAL.
>> AGAIN, YOUR HONOR.
>> TO ME THE FIRST DCA
DIDN'T TOUCH ON THAT AT ALL.
>> ABSOLUTELY.
>> LET'S GO BACK TO THE
OTHER QUESTION.
YOU AN -- YOU AS AN
APPELLANT LAWYER ARE YOU
ARGUING THAT YOUR REFUSAL
BASE ARE NOT IN THE POSITION
OF CLIENTS VIEW?
>> THE WAY THIS IS DEFINED
IT THE STATUTE IS A
PATIENT -- A -- THE WORD
"PATIENT."
>> IT DOESN'T SAY CUSTOMER
SWRAOS RESPECTIVE CLIENTS.
>> CLIENTS I ASK YOU A
SIMPLE QUESTION.
YOU CAN CERTAINLY EXPLAIN IT
AWAY.
DO YOU NOT AS AN APPELLANT
SPECIALIST CONSIDER YOUR
REFERRAL ATTORNEYS WHO SEND
YOU THE ACTUAL CASES.
THOSE PEOPLE DON'T KNOW YOU
AT ALL.
YOUR REFERRAL ATTORNEYS SEND
YOU THOSE CASES.
THOSE -- YOU DON'T CONSIDER
THEM TO BE YOUR CLIENTS.
>> WELL, YOU UR HONOR AT THE
TOEFPBD DAY THE CLIENT IS
THE PERSON YOU.
>> THE PERSON YOU THINK ARE
ARE YOU HRAOEUPBTS.
>> WE UNDERSTAND YOU
REPRESENTATIVE YOU WILL
TREAT A PATIENT.
I THINK ANY WAY THAT'S YOUR
POSITION.
>> THE IS DEFINED IN
STATUTE.
TO USE GENERIC TERM CLIENTS
WE SERVE CLIENTS.
WE'VE TALKED TO REFERRING
ATTORNEYS TO GET THIS.
THE -- AT THE OWNED OF THE
DAY THE CLIENT IS PERSON WE
HAVE A CONTRACTUAL
RELATIONSHIP WITH.
REFERRAL ATTORNEY IS NOT?
>> WE DON'T HAVE A
CONTRACTUAL RELATIONSHIP.
>> MAYBE THAT'S THE ANSWER
THE CONTRACTUAL
RELATIONSHIP.
I THINK,EN, WE NEED TO LOOK
AT THE CONTEXT OF WHAT WE'RE
TALKING ABOUT HERE.
AND WE'RE TALKING ABOUT
PHYSICIANS AND WE NEED TO
ALSO -- I THINK IT'S
IMPORTANT TO LOOK AT THE
LEGISLATIVE HISTORY OF THE
STATUTE AND I CITED AN
ARTICLE FLORIDA BAR JOURNAL
FROM 1996 ADDRESSING JUSTICE
WELLS QUESTION EARLIER IT'S
IMPORTANT OVER THE EVOLUTION
OF THE HISTORY OF THIS
THROUGHOUT THE STATE.
YOU WENT FROM THE UNFAIR
COMPETITION ANALYSIS AT ONE
POINT MORE OF CONTRACTUAL
ANALYSIS AND LEGISLATURE
CAME BACK IN 1996 AND CITED
WITH THE IDEA OF UNFAIR
COMPETITION BEING SORT OF
THE GUIDEPOSE.
LET ME DISTRICT YOUR
ATTENTION THAT.
BECAUSE I WOULD LIKE TO
UNDERSTAND WHAT YOUR
POSITION IS AND WHAT
PROVISION FOR THE STATUTE
MEANS WHEN IT SAYS "SHALL
CONSIDER THE EFFECT OF
ENFORCEMENT OF PUBLIC HEALTH
SAFETY AND WELFARE, A COURT
SHALL CONSTRUE A RESTRICTED
COVENANT IN FAVOR OF
PROVIDING REASONABLE
PROTECTION TO ALL LEGITIMATE
BUSINESS INTEREST.
A COURT SHALL NOT EMPLOY ANY
RULE OF CONSTRUCTION THAT
REQUIRES A COURT TO CONSTRUE
A RESTRICTIVE COVENANT
NARROWLY AGAINST RESTRAINT
OR AGAINST THE DRAFT OR
OTHER CONTRACT."
THAT'S RATHER UNUSUAL.
BUT IT'S EXPRESS LANGUAGE AS
TO HOW THIS IS CON TRUED.
YES, I THINK -- I THINK
THERE'S A BIT OF CONFUSION
MAYBE IN THE PREVIOUS
QUESTIONING ABOUT TWO
DIFFERENT ISSUE INVOLVING
PUBLIC INTEREST.
AND ONE ISSUE IS SET FORTH
IN THE STATUTE BEING IF I'M
SEEKING TO ENFORCE THIS THE
ISSUE OF PUBLIC INTEREST
ABOUT ENFORCEMENT OF THIS
RESTRICTIVE COVENANT COMES
TO PLAY.
THAT ISSUE WAS PLED AND
BROUGHT FORTH AT THE TRIAL
COURT.
BUT THE TRIAL COURT NEVER
GOT TO THAT POINT.
I THINK THAT'S RECOGNIZED IN
THE OPINION.
THE BROADER QUESTION ABOUT
PUBLIC INTEREST OR PUBLIC
POLICY, I THINK, WAS BROUGHT
UP BY JUSTICE PARIENTE AND
JUSTICE QUINCE IS THERE NOT
A PUBLIC POLICY ISSUE TO
SEEK OUT A CERTAIN DOCTOR.
I THINK THAT GOES TWAOBG
WHAT WE TALK ABOUT HERE THE
ISSUE OF UNFAIR COMPETITION.
I WOULD TEND TO AGREE WITH
JUSTICE CONVINCE IF I HAVE
CANCER I WOULD LIKE TO SEE
ANY DOCTOR I WOULD NOT LIKE
TO -- LIKE TO BE CONSTRAINED
BY CONTRACT.
BE THE STATUTE WE'RE DEALING
WITH SAYS EXISTING PATIENTS
OF A MEDICAL PRACTICE ARE
LEGITIMATE BUSINESS INTEREST
IN -- AND CAN'T BE SEEN.
DR. TUMMALA DIDN'T SEE ANY
EXISTING PATIENT AND WENT TO
GREAT LENGTHS TO DO THAT.
ON THAT ONE.
I WANT TO MAKE SURE.
YOU'RE NO -- ARE NOT
CONTESTING.
SOMEONE IS BEING ACTIVELY
TREATED IN THIS CASE FOR
CANCER.
THE DOCTOR IS THE EXPERT ON
THE --
[INAUDIBLE]
>> THAT'S DR. LEE 12346789
THE PATIENT IS PROHIBITED
UNDER THIS STATUTE FOR
CONTINUING -- TO SEEK
CONTINUING TREATMENT WITH
THAT DOCTOR.
>> I BELIEVE THAT'S THE
CASE.
>> NOBODY SAID THAT, THAT'S
AGAINST PUBLIC POLICY OR THE
PUBLIC INTEREST?
EVER?
>> I BELIEVE THE CLEAR
WORDING OF IT AND SANAL
TALKS ABOUT EXISTING
PATIENT.
THINK THE STATUTE IS CLEAR.
THAT'S NOT TO SAY SOMEONE
CAN'T POTENTIALLY ARGUE
THERE'S A PUBLIC POLICY
ARGUMENT THAT COULD OVERRIDE
THAT.
I'M CHAGRIN THAT NOBODY IS
RAISING THAT.
IT SEEMS WE ARE, AGAIN TO
COMPARE THIS TO SOMEBODY WHO
IS A SALES REP FOR A DRUG
COMPANY YOU KNOW AND I DON'T
KNOW WHETHER DR. TUMMALA IS
THE BEST, THE WORST, BUT WE
ALL KNOW THAT DOCTORS -- I
MEAN WOULD I WOULD HOPE THAT
DOCTORS AREN'T REFUSING
PATIENT TO DOCTORS BASED ON
WHO HAS GIVEN THE BEST
DINNER LAST WEEK.
AND I GUESS THAT'S GOING
BACK TO THIS ISSUE OF YOUR
PHYSICIAN -- LET ME ASK IS
THAT A SUBSTANTIAL
RELATIONSHIP, WHATEVER THAT
IS SUPPOSED TO MEAN REALLY
CAN'T BE DEVELOPED IN TERMS
OF A DOCTOR TO
DOCTOR -- BECAUSE DOCTORS
ARE REFERRING TO ALL SORTS
OF PEOPLE ALL THE TIME.
AND THAT'S JUST -- THAT
REFERRAL RELATIONSHIP ISN'T
WHAT IS INTENDED IS A
LEGITIMATE BUSINESS
INTEREST.
THAT'S ESSENTIALLY YOUR.
>> ESSENTIALLY TWO POINTS
AGAIN THE STATUTE SAYS
SPECIFIC IDENTIFIABLE
PATIENT AND AS THE FIFTH SET
FORTH IN THIS CASE WHAT THE
REFERRING PHYSICIANS PROVIDE
IS STREAM OF UNIDENTIFIED
PATIENT SOMEWHERE.
>> IF THEY SAY I GO BACK TO
WHAT JUSTICE LEWIS IS SAYING.
IF IT'S NOT EXCLUSIVE, AND
IF SOMEBODY CAN LOOK AT WHAT
THIS RELATIONSHIP WAS AND
SAY THAT, IN FACT, THIS
WAS -- YOU KNOW THEY BOTH
WENT TO COLLEGE TOGETHER.
THEY BOTH WENT HERE
TOGETHER.
THEY ARE JOINED AT THE HIP.
AND THAT HAS BEEN -- THEY GO
FISHING TOGETHER -- AND
THAT'S WHY THEY REFER.
IS THAT A BUSINESS -- OR IS
THAT A SUBSTANTIAL
RELATIONSHIP?
SO IT SEEMS LIKE IT'S ALMOST
A FACT-INTENSIVE SITUATION.
I GUESS HERE WE'RE SAYING
IT'S AN ALL OR NOTHING.
EITHER THESE REFERRAL
RELATIONSHIPS QUALIFY A
SUBSTANTIAL RELATIONSHIPS OR
THEY DON'T.
IF THEY COULD, MAYBE THERE'S
STILL A BURDEN TO PROVE THAT
THE PARTICULAR RELATIONSHIP
IN THAT CASE IS THE TYPE
THAT'S CONTEMPLATED AND THAT
GOES BACK.
>> I AGREE WITH YOU IN SOME
SENSE.
YOU WERE PRESENTED WITH THE
HYPOTHETICAL LEGAL QUESTION
WITHOUT ANY FACTS ATTACHED
TO IT.
MEANING CAN THEY BE A
LEGITIMATE BUSINESS
INTEREST.
HOWEVER, THAT.
>> AND JURISDICTION THAT
THEY CAN NEVER BE; IS
THAT --
>> OUR POSITION IS THAT WE
AGREE WITH THE FIFTH DCA IN
THE CONTEXT OF PHYSICIANS
THAT WE'RE DISCUSSING HERE
THEY ARE NOT BECAUSE THE
STATUTE SAYS THEY ARE
NOD -- NOT.
WHAT THEY PROVIDE IS STREAM
OF PATIENT THAT WILL BE
COMING TO SOMEONE IN THE
FUTURE THAT ARE NOT
IDENTIFIED.
THIS SEEMS TO IGNORE THE
FACT THAT THE LIST IN THE
STATUTE ISS NO -- NOT
EXCLUSIVE.
THEY DON'T SEEM TO RECOGNIZE
THAT.
THEY SEEM TO INTERPRET THAT
AS IF IT IS NOT ON THE LIST,
IT'S NOT A LEGITIMATE
BUSINESS INTEREST.
WELL, RESPECTFULLY, I
DISAGREE.
YOU CAN HAVE A BUSINESS
INTEREST THAT ARE NOT ON THE
LIST.
BUT DOES THE FIFTH DCA
RECOGNIZE THAT?
>> BELIEVE SO YOUR HONOR.
I BELIEVE WHAT WE ARE
TALKING ABOUT -- AGAIN, IF
SOMETHING -- YOU CAN'T HAVE
SOMETHING THAT CONTRIBUTES
THE ONE THAT IS.
IF THE THING IS IN THE
STATUTE FOR A REASON THEY
CHOSE TO PUT THE WORDING IN
ABOUT SUBSTANTIAL
RELATIONSHIP FOR SPECIFIC
IDENTIFIABLE PATIENT.
AGREE TO HAVE A LEGITIMATE
BUSINESS INTEREST AND
REFERRING PHYSICIANS UNDER
THE STATUTE THERE HAS TO BE
A SUBSTANTIAL RELATIONSHIP
WITH SPECIFIC REFERRING
PHYSICIANS.
BUT WHAT IF THERE IS ONE?
WHAT IF BAR MR. TUM GOT
THERE THEY HAD SUBSTANTIAL
RELATIONSHIP WITH SEVERAL
REFERRING PHYSICIANS THAT
HAD BEEN REFERRING FOR 20
YEARS PATIENTS AND THEN THEY
HAD SAID WE WANT YOU TO
HANDLE SOME OF THE PATIENT
THAT DR. LEWIS JUST REFERRED
TO US.
AND THEN AFTER HE LEAVES HE
DEVELOPED A RELATIONSHIP
WITH DR. LEWIS.
ISN'T THAT A LEGITIMATE
INTEREST FOR THE EMPLOYER?
>> I DON'T THINK SO YOU UR
HONOR.
HERE'S WHY.
AGAIN, I YOU DON'T ELIMINATE
THE WORDING OF YOUR STATUTE
BY THE INSERTION OF THIS
REFERRAL DR. INTO THE
EQUATION.
SECONDLY WHEN WE TALK ABOUT
THE UNFAIR COMPETITION
ANALYSIS THAT YOU HAVE TO
VIEW THE STATUTE UNDER IF
THE BUSINESS ITSELF AND THE
PREVIOUS DOCTORS THERE WERE
SUCH A LEVEL THEN THE
REFERRALS WILL CONTINUE TO
COME REGARDLESS OF WHO WAS
PLOYED THERE.
THAT'S NOT PART OF WHETHER
YOU ARE GOOD OR BAD BUSINESS
PERSON OR SHOE SALES PERSON.
THAT'S NOT PART OF THE
EQUATION.
>> BUT YOUR HONOR --
>> IF YOU HAVE A GOOD REASON
FOR NOT GOING TO ENFORCE IT.
>> WHAT YOU ARE SAYING YOU
CAN ONLY ENFORCE THE
COVENANT IF YOU DON'T HAVE
TO.
>> I'M SORRY.
>> YOU'RE SAYING YOU CAN
ONLY ENFORCE THE KOF TPHUPBT
IF YOU DON'T HAVE TO BECAUSE
THE REFERRING PHYSICIAN --
>> I THINK THERE WAS A
QUESTION ASKED ABOUT CASES
FROM OTHER JURISDICTION.
I CITED A COUPLE IN THE
BRIEF INCLUDING ONE FROM
OHIO THAT SAID IT'S A MATTER
OF COMMON SENSE THAT
REFERRALS ARE MADE TO
PHYSICIANS AND THAT PRACTICE
CAN SUFFER NO LOSS OF
REFERRAL BASE BECAUSE THEY
HAVE NO REFERRAL BASE AS A
CORPORATION.
>> I DON'T BYE THAT ONE
BECAUSE THE SAME THING HAS
TO DO WITH PATIENTS?
THE PATIENT COMES TO A
DOCTOR, NOT A PRARBGS.
MAYBE SOMETIMES THEY DO MOST
OF THE TIME THEY COME
BECAUSE THAT DOCTOR IS
THERE.
SO I THINK THAT THIS THING
I'M GETTING MORE AND MORE
CONCERNED ABOUT IS WHETHER
RELATIONSHIP BETWEEN
REFERRAL DOCTORS ACTUALLY
CAN BE BUSINESS RELATIONSHIP
AND, THEREFORE LEGITIMATE
BUSINESS INTEREST.
JUST LEWIS USED IN THE
APPELLANT ANALOGY, OBVIOUSLY,
AGAIN, THIS ISN'T SOMETHING
THAT IS ANALOGIZED TO LAWYER,
BUT LAWYERS HAVE REFERRAL
RELATIONSHIPS THERE'S NEVER
LIKE THEY COULD BE REFERRING
TO DIFFERENT PEOPLE.
BUT THEN WHEN THEY HAVE THAT
RELATIONSHIP THERE'S THAT
BUSINESS RELATIONSHIP.
THEY BOTH HAVE TO CONTRIBUTE
TO JUST THAT CLIENT.
HERE IF I UNDERSTAND THIS
THE REFUSAL IS MADE, THERE'S
NO MONEY THAT IS EXCHANGED.
THERE IS -- I DON'T KNOW IF
UNDER ETHIC CODE TEARS OTHER
THINGS THAT THEY CAN DO FOR
THE DOCTOR, BUT WHERE IS IN
THE RECORD THE EXPLANATION
OF WHAT IS THE BUSINESS OF
THE REFERRAL DOCTOR.
WHAT IS THAT BUSINESS
RELATIONSHIP?
>> AGAIN, I THINK.
>> IT SEEMS THAT THIS IS A
FAILURE OF PROOF IT CAN BE
ONE THIS, THIS CASE.
>>, I THINK, AGAIN IN THE
POSITION THAT WE'RE
EXPRESSING IS AND I THINK
YOU'RE EXACTLY RIGHT.
WHAT IS THE RELATIONSHIP
BETWEEN THE PHYSICIAN AND
THE REFERRAL PHYSICIAN --
>> THE REFERRING PHYSICIAN
IN THESE CASES IS GENERAL
PRACTITIONER WHO 'TIS
COVERED CANCER, THEN THERE'S
NO LONGER INVOLVED IN THE
TREATMENT OF THAT PATIENT.
IS THAT WHAT YOURY SANG,
THEN IT'S A CONTINUING
RELATIONSHIP BUT IF NOT, I'M
SORRY.
I'M MISSING THE WHOLE POINT
OF THAT ARGUMENT.
>> IT SEEMS TO ME AN
ONCOLOLGIST YOU ARE DOING
TREATMENT ON CANCER PATIENT.
IS THAT A FAIR STATEMENT?
>> I BELIEVE SO YES.
>> THE ONLY WAY THE PATIENT
DON'T WALK INTO THAT OFFICE
THEY COME BECAUSE SOMEONE IS
DIAGNOSED A CONDITION FOR
WHICH THAT PROFESSION, THAT
PROFESSIONAL TREATS.
>> THE FIRST PERSON DOESN'T
JUST AND THEM AND LEAVE THEM
DO THEY?
>> NO.
>> THERE'S CONTINUING WORK
WITH THAT PERSON.
>> THERE'S A CONTINUING
RELATIONSHIP BETWEEN THE
DOCTOR ANDTY -- THE PATIENT
AND PERHAPS SOME SPWRARBGS
BETWEEN THE TWO DOCTORS
INVOLVED.
>> I WOULD HOE SO.
I THINK WHAT A DIFFICULTY
HERE IS WHAT DOES A REFERRAL
PHYSICIAN PROVIDE TO THE
DOCTOR?
HE PROVIDES UNIDENTIFIED
STREAM OF PATIENTS.
THE STATUTE SAYS THOSE ARE
TO BE SPECIFIC AND IDENTIFY
TOABLE WITHIN A BUSINESS
INTEREST.
THEY ARE NOT.
THAT'S WHAT SANAL SAID.
THAT'S WHAT THE FIFTH DCA
SAID.
IS IT A BUSINESS
RELATIONSHIP WITHOUT THOSE
PATIENTS BEING REFERRED?
NO.
IF IT'S A SOCIAL
RELATIONSHIP, IF IT'S
SOMETHING ELSE, THEN IT
DOESN'T MATTER AND DOESN'T
REQUIRE PROTECTION UNDER THE
STATUTE.
>> THINK YOUR ARGUMENT IS
THERE'S SOMETHING UNIQUE
ABOUT MEDICINE.
>> ABSOLUTELY.
RATHER THAN ECONOMIC
ARGUMENT BECAUSE THE
ECONOMICS THIS IS WHERE THEY
COLLIDE.
>> ECONOMICS COLLIDE HERE.
LET ME ASK YOU A QUESTION.
DO YOU AGREE THAT REFERRAL
PHYSICIANS ARE NOT CUSTOMER'S
PATIENTS OR CLIENTS?
>> THAT'S OUR POSITION THEY
ARE NOT.
IF THE PATIENTS ARE WHAT THE
DOCTOR ULTIMATELY IS SEEING.
THE REFERRAL PHYSICIAN IS
NOT DEFINED BY THE STATUTE.
>> AND IF MY CONCERN IS IF
WE LIMIT OR INCLUDE THE
BROAD TERM REFERRAL
PHYSICIAN AS A BUSINESS
INTEREST OUTSIDE THE
EXCLUSIVE LIST HERE THEN
DOESN'T THAT DO AWAY WITH
NARROWNESS OF THE DEFINITION
OF CUSTOMERS, CLIENTS AND
PATIENTS THAT THEY BE
SUBSTANTIAL RELATIONSHIPS
WITH SPECIFIC PERSPECTIVE
CLIENTS.
DO YOU UNDERSTAND MY
QUESTION SKWRAOPL I'M TRYING
TO UNDERSTAND YOUR QUESTION.
WE -- IF WE ACCEPT THE
ARGUMENT OF YOUR OPPONENT
WHICH REFERRAL POSITIONS
WHICH IS THE SOLE BASIS,
BASICALLY OF SUBSPECIALIST
LIKE YOUR CLIENTS OF
RECEIVING PATIENTS, THEN
AREN'T WE JUST TOTALLY
EVISCERATING THE LIMITATION
OF THIS?
>> I BELIEVE SO.
>> I THINK SO.
AND I THINK THAT AGAIN THE
COURT HAS FOCUSED AND TALKED
ABOUT THE NATURE OF THE
PHYSICIAN RELATIONSHIP AND I
THINK THAT IS PART OF THIS.
AND I THINK THE WORDING OF
THE STATUTE IS CLEAR ON THIS
POINT, ALSO.
>> WILL THERE BE ANY
DIFFERENCE IF YOUR CLIENT
HAD ACTUALLY GUN OUT AND DID
WHAT HE DID AT -- GONE OUT
AND DID WHAT HE DID AT THE
CORPORATION AND COURTED THE
REFERRING PHYSICIANS IN THE
SAME MANNER THAT HE DID AT
THE CORPORATION.
IS THAT DIFFERENT FROM THESE
REFERRING PHYSICIANS SIMPLY
GIVING -- IF REFERING THE
PATIENT WITHOUT HIM GOING
THROUGH THE STEP OF TRYING
TO ENTERTAIN THEM AND GET
THEM FOR THE CLIENT.
>> I DON'T BELIEVE SO AND
HERE'S WHY.
THE TERM LEGITIMATE BUSINESS
INTEREST AND THAT ARTICLE I
SIGNED TALKS ABOUT IT BEING
AN ASSET THAT IF
MISAPPROPRIATED WOULD GIVE
ITS NEW OWNER UNFAIR
COMPETITIVE SRABG OVER THE
FORMER OWNER.
THE RELATIONSHIP THAT DOCTOR
HAS OR HIS REPRESENTATION IS
NOT AN ASSET OF THE PREVIOUS
EMPLOYER.
IT'S SOMETHING THAT IS
UNIQUE TO THAT DOCTOR AND
ONCE HE LEAVES I SEE MY TIME
IS UP.
CAN I FINISH ANSWERING THIS
QUESTION, PLEASE.
>> ONCE HE LEAVES, FEHN YOU
CAN'T FORCE THOSE DOCTORS
WHO REFERRED TO HIM HERE TO
CONTINUE REFERRING TO THE
FORMER BUSINESS.
HIS REPRESENTATION THAT HE
DEVELOPED AND THAT'S WHY HE
GETS REFERRALLED GOES WITH
HIM WHEREVER AND YOU CAN'T
SAY GIVE THAT REPRESENTATION
BACK FORMER EMPLOYER.
WE WILL PROTECT THAT.
IT'S NOT THEIR ASSET.
IT'S A UNIQUE SITUATION
INVOLVING A DOCTOR WHERE HIS
REPRESENTATION IS WHAT GAINS
THE REFERRALS AND ONCE HE
LEAVES IT'S FAIR COMPETITION
TO SAY THAT THOSE DOCTORS
CAN CHOOSE TO REFER TO THE
PREVIOUS EMPLOYER.
>> THANK YOU VERY MUCH.
>> QUESTIONS WERE BEING ASK
INSTEAD.
LET ME BE THE FIRST TO TAKE
UP YOUR 35 SECONDS.
>> THE HE REALLY MEANS IT.
>> UNLESS WE HAVE MENTAL
TELEPATHY GOING ON.
IN THE PREPARATORY LANGUAGE
OF THIS STATUTE IN THE VERY
OPENING PARAGRAPH, THE
LEGISLATURE TALKS ABOUT
AUTHORIZING RESTRICTIVE
CUFFNANTS THEN THEY HAVE
QUALIFIERING LANGUAGE SO
WRONG AS SUCH CONTRACTS ARE
REASONABLE AND THEY TALK
ABOUT IN TIME AREA BUT THEY
ALSO SAY IN LINE OF
BUSINESS.
AND SO ISN'T THAT A SIGNAL
THAT THE LEGISLATURE WANTS
BOTH PEOPLE IN PROFESSIONS
OR BUSINESSES OR WHATEVER
AND ALSO WANTS COURTS.
>> OKAY.
>> TO LOOK AT THE LINE OF
BUSINESS THAT IS BEING
AFFECTED.
AND I ASK THAT WITH
REFERENCE TO THE QUESTION
THAT HAVE BEEN ASKED OF YOU
HERE WITH REFERENCE TO THIS
UNIQUE RELATIONSHIP OF
PHYSICIAN IN PATIENT AND
WHAT WE HAD THE IMAGE OF IS
A PATIENT WHO IS
UNFORTUNATELY STRICKEN WITH
A SERIOUS CANCER, A DISAND
NOW THE PHYSICIAN THAT HAS
BEEN TAKEN CARE OF HER AND
LEAVES THE TKPWRAOEP -- GROUP
AND SHE HAS FORMED THIS VERY
SPECIAL AND IT'S AS MUCH AN
EMOTIONAL RELATIONSHIP AS
THE CONFIDENCE IN THE
PHYSICIAN AND ALL THAT AS IT
IS ANYTHING ELSE AND WE HAD
THE SPECTER UNDER A
PROVISION LIKE THIS THAT,
THAT PATIENT CAN'T CONTINUE
TO GO TO THAT DOCTOR ONCE
THAT DOCTOR LEAVES THAT
GROUP.
AND I'M REALLY ASKING YOU
ISN'T THIS WHAT THE
LEGISLATURE MEANT WHEN IT
ASKED THAT WE CONSIDER THE
LINE OF BUSINESS TO CONSIDER
FACTORS LIKE THAT AND THE
WAY THAT WE INTERPRET THESE
STATUTORY PROVISIONS.
>> I GUESS MY RESPONSE WOULD
BE THE LEGISLATURE USED WORD
"EXISTING PATIENTS" AS A
LEGITIMATE BUSINESS INTEREST
SPECIFICALLY IN THE STATUTE.
AND THE WORD PATIENT
TYPICALLY MEANS PATIENT WITH
REGARD TO A PATIENT/DOCTOR
RELATIONSHIP AND THEY
CLEARLY INTENDED TO PROJECT
THE RELATIONSHIP WITH
EXISTING PATIENTS.
>> HOW COULD IT BE
REASONABLE?
IF YOU HAVE A PATIENT WHO
HAS THIS RELATIONSHIP WITH
THE PHYSICIAN AND THEY ARE
TOLD THEY CANNOT GO TO THIS
DOCTOR.
TELL ME HOW THAT COULD
POSSIBLY BE REASONABLE?
>> YOUR HONOR OUR RESPONSE
WOULD BE ONLY
THAT -- NONCOMPETE CASES
WHICH HAVE CONSTRUED THE
STATUTE THAT FOCUS OF
REASONABILITY AS ALWAYS BEEN
ON GEOGRAPHIC SCOPE, THE
NONCOMPETE AND WHETHER OR
NOT IT IS A LEGITIMATE
BUSINESS INTEREST WHICH CAN
BE PROTECTED UNDER THE
STATUTE.
I DON'T BELIEVE THERE'S EVER
BEEN A CASE WHICH IS
ADDRESSED DIRECTLY OR HEAD
ON.
IS IT REASONABLE FOR -- FOR
AN EXISTING PATIENT TO NO
LONGER BE ABLE TO SEE A
DOCTOR WHO THEY PREVIOUSLY
HAVE BEEN SEEING BECAUSE THE
DOCTOR --
>> IS THAT A VALID
CONSIDERATION?
>> IT CERTAINLY VALID
CONSIDERATION AND
FURTHERANCE TO ONE OF
JUSTICE LEWIS COMMENTS TO ME
EARLIER IS UNLESS THIS COURT
IS PREPARED TO MAKE A
DISTINCTION BETWEEN THE
MEDICAL PROFESSION AND ANY
OTHER PROFESSION IN BUSINESS,
IN THE WAY THAT INTERPRETS
THIS STATUTE BECAUSE, AGAIN
THE FIFTH CAN'T MAKE THIS
DISTINCTION.
THE FIFTH SIMPLY INTERPRETED
THE STATUTE TO SAY YOU CAN'T
PROTECT REFERRAL
RELATIONSHIPS AND THE
CONCERN THAT PETITIONERS
HAVE BEYOND JUST THIS
PARTICULAR AREA IS THIS
LOGIC WOULD EFFECT ANY
GATEKEEPER RELATIONSHIP.
UNLESS THIS COURT IS
PREPARED TO INTERPRET THE
STATUTE TO MAKE A
DISTINCTION FOR DOCTORS
RATHER THAN.
>> YOU'RE OUT OF TIME.
ONE LAST QUESTION.
WHY HAS PRESIDENT STATUTE
MADE THAT DISTINCTION?
WHERE IT SAYS IN DETERMINING
THE ENFORCEABILITY OF A
RESTRICTED COVENANT A COURT
SHALL CONSIDER THE EFFECTIVE
ENFORCEMENT UPON THE PUBLIC
HEALTH SAFETY AND WELFARE?
SO IT SEEMS -- WHY ISN'T
THAT A CARVING OUT OF
A -- THIS TYPE OF SITUATION
WHEN YOU TALK ABOUT
PATIENTS.
>> I THINK IT IS JUSTICE
WELLS.
I THINK IT'S ON A
CASE-BY-CASE BASE -- BASIS.
IN THIS CASE THE TESTIMONY
WAS THAT THERE WERE 60
ONCOLOLGIST ON THIS
GEOGRAPHIC AREA WHO WERE
BOARD CERTIFIED IN THE AREAS
OF HEMATOLOGY AND ONCOLOGY.
DR. TUMMALA WAS NOT THE ONE
RARE PHYSICIANS FROM THE
1976 CASE.
THAT'S ABSOLUTELY CORRECT.
A TRIAL COURT IS SUPPOSED TO
LOOK AT THOSE ISSUES AND
MAKING THAT DECISION.
I AM ONLY AWARE OF ONE TIME
IN ALL THE JURISPRUDENCE OF
THE STATE OF FLORIDA WHERE
THAT HAS BEEN SUFFICIENT TO
OVERRIDE THE RESTRICTED
COVENANT.
>> WE THANK YOU FOR THE
ARGUMENTS ON A VERY
IMPORTANT CASE AND
APPRECIATE YOU HELPING US
RESOLVE THIS.
AND WE WILL TAKE IT UNDER
AADVISE.
THE COURT WOULD LIKE TO
ACKNOWLEDGE THE PRESENCE
THIS MORNING FROM ONE OF OUR
FINE LOCAL UNIVERSITIES
FLORIDA A&M UNIVERSITY THE
LEGAL ENVIRONMENTAL BUSINESS
LAW CLASS AND DR. RICHARD
WRIGHT HERE THIS MORNING FOR
ARGUMENT WE'RE GLAD YOU ARE
HERE AND WE HOPE YOU FIND
THEM INFORMATIVE.