Florida Hematology & Oncology Specialists v. Rambabu...

In re: Amendments to the Florida Small Claims Rules

file:///Volumes/www/gavel2gavel/transcript/06-993.html[12/21/12 3:16:30 PM]

The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. Thisservice is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legaldocuments, 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 FLORIDAIS NOW IN SESSION.ALL WHO HAVE BUSINESS BEFORETHIS COURSE, DRAW NEAR, GIVEATTENTION AND YOU SHALL BEHEARD.GOD SAVE THESE UNITED STATES,THE GREAT STATE OF FLORIDAAND THIS HONORABLE COURT.>> GOOD MORNING.>> GOOD MORNING.LADIES AND GENTLEMEN, THEFLORIDA SUPREME COURT.PLEASE BE SEATED.>> GOOD MORNING AND WELCOMETO THE FLORIDA SUPREMECOURT.FOR OUR ORAL ARGUMENTCALENDAR FOR WEDNESDAY APRIL18th.THE FIRST CASE ON OURCALENDAR IS THE FLORIDAHEMATOLOGY AND ONCOLOGYSPECIALIST CASE.MR. McTPHAOEPL, ARE YOUREADY TO PROCEED.>> YES, YOUR HONOR.>> MAY IT PLEASE THE COURTI'M GREG McNEILL HERE ONBEHALF OF THE PETITIONER.IT'S THE PETITIONER'SPOSITION IN THIS PARTICULARCASE THAT THE FIFTH DISTRICTCOURT OF APPEAL ERRED WHENIT CONSTRUED FLORIDA STATUE542.335 TO EXCLUDE THEABILITY OF A MEDICALPRACTICE TO PROTECT ITSRELATIONSHIPS WITH REFERRALPHYSICIANS.>> HOW DO WE HAVEJURISDICTION OVER THIS CASE?



>> YOUR HONOR YOU HAVEJURISDICTION PURSUANT TO THECONFLICT BETWEEN THE FIFTHDISTRICT COURT OF APPEAL'SOPINION AND THE CASE AT BARAND THE THIRD DISTRICT COURTOF APPEAL AND THE SOUTHERNMOST FOOT CASE AS WELL ASTHE THIRD DISTRICT COURT OFAPPEAL'S OPINION IN OPENMAGNETIC IMAGING.IN THE SOUTHERN FOOT CASE,WAS REFERRING PHYSICIAN APART OF THE DECISION INHOLDING IN THAT CASE?I SEE IT REALLY SPEAKS AS TOTIME LIMITATION DUE TOGRAPHIC CONSTRAINTS AND THATPRIVILEGE IS.I DON'T SEE ANYTHING OTHERTHAN REFERENCING THE TRIALCOURTS ORDER THAT THERE'S ASPECIFIC HOLDINGREGARDING -- REFERPHYSICIANS?>> YOUR HONOR, THERE WAS NOPARTICULAR ANALYSIS DONE OFTHE ISSUE OF REFERRALPHYSICIAN COULD BE ALEGITIMATE BUSINESS INTERESTUNDER THE STATUTE.THE THIRD DCA AFFIRMED THETRIAL COURT WHO FOUNDBUSINESS INTEREST ANDREFERRAL PHYSICIAN.HAS ANYONE -- DID ANYONEMAKE AN ARGUMENT IN THISCASE THAT RESTRICTION SUCHAS THIS IN THE MEDICALPROFESSION HAVE SIGNIFICANTPUBLIC POLICY IMPLICATIONSTHAT WOULD DIFFERENT FROM IFYOU USED ANALOGY OFRELATIONSHIPS OF DIFFERENTDOCTORS AND I SEE THAT IT'SWORLDS APART.YOU KNOW, LAWYERS CONDUCTAND HAVING SUCH.HAS THAN BEEN RAISED, THOSEISSUES?>> YOU'RE HONOR I DON'TTHINK THAT ISSUE IS DIRECTLYIN FRONT OF THE COURT.HOWEVER, YOU ARE CORRECT IN



MANY OPINIONS IN THIS STATETHAT WITH CUFFNANCE AGAINSTRESTRICTION THE PUBLICPOLICY ARGUMENT IS OFTENRAISED.IS IT AGAINST THE PUBLICINTEREST?TO MY KNOWLEDGE, THERE HASOBVIOUSLY BEEN ONE CASE FROM1976 THAT INVOLVED THERESTRICTIONS ON A SURGEON INTHE FLORIDA KEYS WHERE THECOURT EXPRESSLY FOUND THATTO ENJOIN THAT SURGEON WOULDBE AGAINST THE PUBLICINTEREST BECAUSE OF THESCARCITY OF THAT -->> THAT WOULD ONLY COME UPAFTER THE DETERMINATION ISMADE AS TO WHETHER THERE'S ALEGITIMATE BUSINESSINTEREST.>> PRESUMABLY, YES.>> THAT'S -- THAT'S WHATWE'RE REALLY HERE ON THISTHRESHOLD ISSUE.IS IT YOUR POSITION THATTHIS IS A MATTER OFSTATUTORY CONSTRUCTION?>> E YES, IT IS AND HERE ONDE NOVO REVIEW.SO IN -- WHAT DID THE FIFTHDISTRICT GET IT WRONG AS FARAS THEIR ANALYSIS?>> I BELIEVE THE FIFTHDISTRICT COURT OF APPEALSIT'S A PETITIONER'S POSITIONTHAT THEY CONSIDERED THEOPINION OF THE FIRST DCA ANDEVEN THOUGH THE FACTS OFSANAL WERE SIGNIFICANTLYDIFFERENT WHAT THE FIFTHCONCLUDED BECAUSE SAL CAN'THAVE UNEFFECTED PATIENTS WEDON'T KNOW HOW TO PROTECTREFERRAL PHYSICIANS BECAUSEAT THE END OF THE DAY THAT'SWHAT A REFERRAL PHYSICIAN ISGIVING THE PRACTICE.>> LET ME ASK YOU ABOUT THISREFERRAL PHYSICIANS.AND IT FOES BACK ARE REALLYTO THE PUBLIC POLICYQUESTION THAT WAS ASKED



EARLYER.BUT WAS THERE ANY ARGUMENTMADE CONCERNING WHETHER ORNOT BECAUSE THESE REFERRINGPHYSICIANS ARE NOT A PART OFTHE COVENANT THAT THE OTHERPHYSICIANS ENTERED INTO.H WE SOMEHOW -- IS THERESOME PUBLIC POLICY QUESTIONABOUT WHETHER OR NOT WEWOULD BE RESTRICTINGACTUALLY -- THE REFERRINGPHYSICIANS ABILITY TOPRACTICE?>> THE ARGUMENT THAT WASN'TEXPRESSLY MADE.HOWEVER, I DON'T KNOW THATTHERE'S A CON SEPIALDIFFERENCE BETWEEN A TPEFRINGPHYSICIAN AND A CUSTOMER FOREXAMPLE IN ANOTHERNONCOMPETE SITUATION.CLEARLY THE CUSTOM MANIER ISNOT BOUND BY THE RESTRICTEDCOVENANT.HOWEVER THE COURTS HAVEUNIFORMALLY ENFORCEDRESTRICTIVE CUFFNANCE TOPRECLUES THE SALES PERSONFOR EXAMPLE FROM CALLING ONACCEPTING BUSINESS FROM ACUSTOMER IN THEIR FORMERTERRITORY EVEN THOUGHTHAT -->> DON'T YOU SORT OF SEETHIS REALLY IN A DIFFERENTLIGHT WHEN YOU'RE TALKINGABOUT THE MEDICAL PROFESSIONAND A PATIENT AND THEREFERRING PHYSICIANS.IT SEEMS VERY INTERESTING TOME YOU CAN ENTER INTO THESEKINDS OF AGREEMENTS AND APATIENT, EVEN THE PATIENTWHICH IS NOT REALLY AN ISSUEHERE DOESN'T HAVE THE RIGHTTO GO TO THE PHYSICIAN THATHE OR SHE MAY WANT TO GO.>> YOUR HONOR, I UNDERSTANDTHE POSITION.THERE'S ONLY ONE APPELLANTCOURT CASE THAT I'M AWARE OFWHERE A TRIAL COURT REFUSEDTO ENTER AN INJUNCTION



AGAINST A DOCTOR BASEDSOLELY ON PATIENT SELECTION.BASICALLY SELECTION DECISIONABOUT WHAT DOCTOR THEYWANTED TO CHOOSE.AND I APOLOGIZE.THE CASES ESCAPES ME.THE TRIAL COURT WAS REVERSEDFIND PAIN -- PATIENT'S RIGHTTO CHOOSE WAS BASIS TODENIAL FOR INJUNCTIVERELIEF.YOU WERE IN THE MIDDLE OFEXPLAIN HOW THE FIFTH DCAGOT IT WRONGED AS SHEPHRASED IF QUESTION.IT'S OUR POSITION THATBECAUSE SANAL INVOLVED ONLYWHETHER OR NOT A MEDICAL INTHIS CASE, THE UNIVERSITYHOSPITAL IN JACKSONVILLEWHETHER IT HAD A LEGITIMATEBUSINESS INTEREST IN UNKNOWNPERSPECTIVE PATIENTS.IN THIS CASE IT WAS A50-MILE GEOGRAPHICAL RADIUSAND THE FIRST DCA ANDAFFIRMING THE TRIAL COURT'SDENIAL OF INJUNCTIVE RELIEFSAID YOU CAN'T HAVE ALEGITIMATE BUSINESS INTERESTIN UNKNOWN PERSPECTIVEPATIENTS ANYWHERE IN THE50-MILE RADIUS FOR TWOYEARS.WHAT OUR POSITION IS THATYOU CAN ADDRESS THE CONCERNSOF SANAL IN OUR CASE ANDSTILL PROTECT LEGITIMATEBUSINESS INTERESTS OF THEPRACTICE.>> IN SANAL THERE WASN'T ANISSUE WITH REGARD TOREFERRING PHYSICIANS AT ALL.>> AT ALL.>> LOOK AT THAT DECISION ANDTHEY WERE TALKING IN TERMSOF JUST BORROWINGCOMPETITION WITH ANYONE.THAT DECISION CAN STILLSTAND WITHIN YOUR ARGUMENT.THEY DIDN'T ADDRESS IT ATALL THE SAME.>> ABSOLUTELY YOUR HONOR.



IN SANAL THERE WAS NOEVIDENCE THERE WAS A DECLINEIN THE ONCOLOGY PRESENCE ANDNO EVIDENCE THAT DR. SA INAL SOLICITED REFERRALS FROMANY PRIORITY SOURCES.>> THE FIRST DCA INCLUDEDTHOSE FACT IN THEPARTNERSHIP.>> SO THE RELIANCE IN SANALIS MISPLACED.LET'S GET BACK TO THESTATUTORY CONSTRUCTIONQUESTION.IS IT YOUR POSITION THAT THEWHERE WE HAVE TO LOOK TO SEEWHETHER THERE'S A LEGITIMATEBUSINESS INTEREST IS UNDER11:00 SECTION 3 WHICH HAS TODO WITH SUBSTANTIALRELATIONSHIPS WITH SPECIFICPERSPECTIVE OR SPECIFICCUSTOMERS PATIENTS ORCLIENTS.>> NO, YOUR HONOR.BECAUSE THE STATUTE ISWORDED AS "AS INCLUDES BUTNOT LIMITED TO.">> THEN WE WOULD HAVE TOEXTRAPOLATE FROM THE LIST OFWHAT IS THERE TO SAY THAT AREFERRAL RELATIONSHIP IS INTHE SAME CATEGORY AS THATBUT YOU STILL HAVE TO SHOWTHAT IT'S A SUBSTANTIALRELATIONSHIP WITH A SPECIFICPERSPECTIVE OR EXISTINGREFERRAL DOCTOR.IN OTHER WORDS, OR IS IT YOUCAN JUST BAN REFERRALRELATIONSHIP HERE.DO YOU UNDERSTAND WHAT I'MSAYING?>> I TO.>> IF YOU DON'T GO ON THREE,DO YOU JUST REFERRALRELATIONSHIPS ARE LIKE TRADESECRETS.WE'RE JUST GOING TO PROTECTTHEM OR DO YOU STILL HAVE TOUSE A SUBSTANTIALRELATIONSHIP LANGUAGE ANDHOW DO YOU -- I'M TRYING TOTHINK OF THE STATUTORY



CONSTRUCTION PRINCIPLE THATALLOWS YOU TO PICK ANDCHOOSE WHAT TERMS YOU USE?>> I WOULD SUGGEST THAT THECOURT IS NOT CONSTRAINED BYTHE LANGUAGE OF THE STATUTEIN THE PREDICATE IS THATLEGITIMATE BUSINESS INTERESTINCLUDE BUT ARE NOT LIMITEDTO AND THEN IN THELEGISLATURE DOES SET FORTHSEVERAL CATEGORIES OFEXAMPLES.IF -- CERTAINLY THERE ARESIMILAR LATERITIES BETWEENTHE REFERRAL PHYSICIANRELATIONSHIP WHICH IS AKNOWN SPECIFIC IDENTIFIABLERELATIONSHIP.AND SPECIFIC CLIENTSCUSTOMER AND PATIENT.THERE'S NO QUESTION THERE.I DON'T BELIEVE BECAUSE THELANGUAGE OF THE STATUTE YOUARE LIMITED TO TRYING TOFIND ONE OF THOSE CUBBIEHOLES IF YOU WILL TO MAKEYOUR INTEREST FIT INTO.KIND OF WHAT BOTHERS MEABOUT THIS STATUTE IS THATHISTORICALLY MY RECOLLECTIONIS THAT IN FLORIDA THECOVENANCE NOT TO COMPETE ORTO BE CONSTRUED NARROWLYBECAUSE THEY WERE INRESTRAINT OF TRADE.THE STATUTE SPECIFICALLYDICTATES A METHOD OFCONSTRUCTION IN THIS STATUTETHAT AWAY WITH THATREASON -- WITH THAT LINE OFCASES.I WONDER HOW FAR THIS COURTCAN GO WITHOUT RUNNING INTOA CONSTITUTIONAL PROBLEM IFIT IS CONSTRUES THIS STATUTESO BROADLY THAT, IN FACT, ITDOES RESTRAIN TRADE INVIOLATION OF THECONSTITUTION.HOW FAR CAN WE GO?>> YOUR HONOR I THINK WHATTHE LEGISLATURE INTENDED BYTHE LANGUAGE OF THE STATUTE



IS THAT IF A PROPONENT OF ARESTRAINING TRADE CAN PLEADAND PROVE A LEGITIMATEBUSINESS INTEREST WHATEVERTHAT'S DEFINED TO MEAN THENA RESTRICTIVE COVENANT SOLONG AS IT IS REASONABLEFOLLOWING THE CASE LAW THATDEFINES REASONABLENESS WASAVAILABLE TO RESTRAINCOMPETITION.I THINK THE BURDEN IS ONTHE -- IN MY CASE THEPETITIONER HERE TO PLEAD ANDPROVE THE LEGITIMATEBUSINESS INTEREST THATREQUIRES TO BE PROTECTED.I DON'T BELIEVE THAT ANDIT'S CLEAR IN THE LANGUAGEOF THE -->> THAT'S A LEGITIMATEBUSINESS INTEREST OTHER THANWHAT IS SPECIFIED IN THESTATUTE?>> YES, YOUR HONOR.SIMPLY BECAUSE THELEGISLATURE CHOSE TOLEAD -- LEAVE THE STATUTEOPEN ENDED AS TO LEGITIMATEBUSINESS INTEREST WHICHMIGHT BE ABLE TO BESUGGESTED, PLED, PROVED TOTHE SATISFACTION OF THETRIAL COURT.>> IN DECIDING WHAT IS ALEGITIMATE BUSINESS INTERESTIN THIS CONTEXT ANDBALANCING THE EMPLOYERSLEGITIMATE BUSINESS INTERESTAGAINST THE DOCTORS ABILITYTO PRACTICE THIS TRADE, WHYISN'T IT APPROPRIATE TO MAKEA DISTINCTION BETWEENREFERRAL PHYSICIANS WHO WEREALREADY REFERRING PATIENTSTO THE EMPLOYER AT THE TIMETHAT DR. TUMMALA BEGAN HISEMPLOYMENT AND THOSE THATREFERRED TO THE EMPLOYERBECAUSE DR. TUMMALA ARRIVEDTHERE AND WERE DOING ITAFTER HIS ARRIVALSPECIFICALLY DR. TUMMALA.WHY ISN'T YOUR LEGITIMATE



BUSINESS INTEREST LIMITED TOTHOSE REFERRAL PHYSICIANSTHAT WERE REFERRING BEFORETUMMALA'S ARRIVAL.>> WELL IN, THIS PARTICULARCASE, YOUR HONOR,DR. TUMMALA HAD NEVER LIVED,WORKED OR PRACTICED MEDICINEIN LAKE COUNTY, FLORIDAWHICH IS THE OFFICE THAT HEJOINED OF THE PRACTICE WHENHIS STARTED.IT WAS HIS FIRST PRIVATEPRACTICE.HE HAD NO RELATIONSHIPS WITHANY REFERRAL PHYSICIANSPRIOR TO JOINING THEPRACTICE AND UNDER HISEMPLOYMENT AGREEMENT HE WASREQUIRED TO DEVELOP TORE THEBENEFIT OF THE PRACTICETHOSE REFERRAL RELATIONSHIPSAND DID SO FOR EIGHT YEARSWHILE HE WAS COMPENSATED ANDENCOURAGED AND REIMBURSEDFOR THOSE ACTIVITIES.THAT WAS THE EVIDENCE THATTHE TRIAL COURT BELOW.SO AFTER EIGHT YEARS OFPRIVATE PRACTICE WITH THISPARTICULAR PRACTICE HE THENSTARTS HIS OWN IN THE SAMETOWN AND IMMEDIATELY BEGINSUTILIZING THOSE REFERRALSOURCES THAT HE HASDEVELOPED BANKLY ON THEEMPLOYER'S NICKEL FOR EIGHTYEARS.THOSE ARE THE FACTS THAT OURCASE.I UNDERSTAND THE ARGUMENTBUT WHAT ABOUT A DOCTOR WHOHAD BEEN PRACTICING FOR 25YEARS IN AN AREA AND THENJOINS A PRACTICE.WHAT ABOUT THE RELATIONSHIPSTHAT MIGHT BE PREEXISTINGTHERE?>> YOU'RE LOOKING AT IT FROMTHE POINT OF VIEW OF THEDOCTOR.I'M LOOKING AT IT REALLYFROM THE POINT OF THE VIEWOF THE EMPLOYER AND THE



EMPLOYER'S LEGITIMATEBUSINESS INTEREST.I CAN SEE HOW YOU WOULD SAYWE HAD 50 REFERRINGPHYSICIANS BEFORE HE GOTHERE AND HE TOOK THEM ALL.AND WE HAD DEVELOPED ARELATIONSHIP WITH THOSEPHYSICIANS AND WEESSENTIALLY GAY HIM THOSEPHYSICIANS TO MANAGE WHILEHE WAS HERE AND HE TOOKTHEM.THAT'S NOT FAIR.AS OPPOSED TO PHYSICIANSTHAT HE DEVELOPED WITH HISOWN SWEAT, OWN ABILITIES ANDMARKETING AFTER HE ARRIVEDTHERE WHEN YOU'REDETERMINING WHAT ALEGITIMATE BUSINESS INTERESTIS AND LOOKING AT THE OTHEREXAMPLES IN THE STATUTE, WHYISN'T THAT DISTINCTIONAPPROPRIATE TO MAKE?>> BECAUSE I DON'T THINK THESTATUTE ANYWHERE DELINEATESTEMPORARILY DELINEATESBETWEEN EXISTINGRELATIONSHIPS PRIOR TOEMPLOYMENT AND RELATIONSHIPSDEVELOPED DURING EMPLOYMENT.>> BUT I UNDERSTAND WHAT YOUARE SAYING.IT SAYS SUBSTANTIALRELATIONSHIP WITH SPECIFICPERSPECTIVE OR EXISTINGCUSTOMERS PATIENTS ORCLIENTS, SO IF WE AFALLGUISE TO THAT ANDUNDERSTANDING THAT THIS ISAN INCLUSIVE IT'S NOTEXCLUSIVE LIST WHEN YOU TALKABOUT SUBSTANTIALRELATIONSHIPS, WHAT'SSUBSTANTIAL RELATIONSHIPS DOYOU HAVE WITH REFERRINGPHYSICIANS AND WHY ISN'T ITLIMITED TO THOSE REFERRINGPHYSICIANS THAT YOU HADBEFORE HE BEGAN HISEMPLOYMENT THERE?>> I WOULD ANSWER THEQUESTION FROM THIS CASE IS



THAT THE RELATIONSHIPS WITHREFERRAL PHYSICIANS THATWERE DEVELOPED BYDR. TUMMALA WHILE ANEMPLOYEE ARE REALLYCONCEPTUALLY NO DIFFERENTTHAN A SALES PERSON WHO GOESINTO A TERRITORY AND BEGINSDEVELOPING CLIENTS ANDCUSTOMERS FOR THE EMPLOYER.I'M NOT AWARE OF ANY CASE INFLORIDA WHERE THATDISTINCTION HAS BEEN USED TOSAY, WELL THE SALESMENRELATIONSHIPS THAT HEDEVELOPED WHILE WORKING FORTHE EMPLOYER THOSE CAN'T BETHE BASIS OF THE RESTRICTIVECOVENANT.IT'S ONLY THE RELATIONSHIPSTHAT THE EMPLOYER HAD PRIORTO HIRING THE SALESMAN THATCAN BE PROVIDED.>> AREN'T YOU OVERLOOKING,THOUGH THE DIFFERENCES INBUSINESSES AND PROFESSIONSAND SOME THINGS THAT MIGHTBE UNIQUE, FOR INSTANCE, TOLAWYERS OR PHYSICIANS ORWHATEVER YOU KNOW FOR THEORDINARY BUSINESS THAT'SMANUFACTURERING WIGITS ANDTHAT EVERYBODY GOES TO THATBUSINESS BECAUSE THEY LIKETHEIR WIGIT AND THESALESMAN -- WHAT YOUDESCRIBED MAY BE A PERFECTLYAPPLICABLE AND NOBODY WOULDCONTROVERT THAT.NOW WE'RE TALKING ABOUTSOMETHING THAT IS REALLYHIGHLY REFINED IN TERMS OFTHE SELECTION OF ASPECIALIST OR A PHYSICIANAND LOTS OF OTHER THINGS GOINTO A DECISION ABOUTSELECTING A TREATINGPHYSICIAN, ESPECIALLY IN THEONCOLOGY FIELD.WOULD YOU NOT?>> YES, YOUR HONOR.I WOULD.IN FACT THERE'S SO MANYDIFFERENT FACTORS WHICH DO



COME INTO PLAY, ONE OF THOSEFACTORS FOR GOOD OR FOR BADIS THE INSURANCE COMPANY.AND WHO THEY WILL PAY FORAND WHO THEY WILL NOT.THAT OBVIOUSLY HAS NOTHINGTO DO WITH THE REFERRALPHYSICIAN, BUT THAT'S THEFACT OF LIFE AND THEPRACTICE OF MEDICINE INFLORIDA IN THE SPECIALTYPRACTICE.SO WHILE THERE ARE CERTAINLYSOME DIFFERENCES BETWEEN THERELATIONSHIP BETWEEN APATIENT AND THE DOCTOR ITHINK THERE ARE SOMEBUSINESS PRINCIPLES WHICHHAVE NOTHING TO DO WITH THATRELATIONSHIP.AND IN YOUR RESEARCH AND IREALIZE YOU'RE INTO YOURREBUTTAL TIME SO I WANT YOUTO HIT THIS A WHACK.HAVE YOU FOUND ANY CASE LAWFROM OTHER JURISDICTIONSTHAT TREAT THIS UNIQUE REURPTHAT PHYSICIANS HAVE ANDREFERRING PHYSICIANS ANDTHIS IN ANY CONTEXT.IN OTHER WORDS YOU FOUND ANYCASE LAW THAT WOULD SHEDSOME LIGHT ON WHAT WE'RETPWRAP LING WITH INSOFAR ASTREATING THIS PROBABLY ALITTLE BIT DIFFERENT THAN WEWOULD TREAT THE BUSINESS OFMAKING WIGIT IS.WE HAVE CITED CASES THATRECOGNIZE -- I DON'T KNOWTHEY USE THE TERM LEGITIMATEBUSINESS INTEREST IN THESTATE OF HO -- HIO ANDVISITS WITH FOR EXAMPLE,THAT HAVE A FIRM INJUNCTIONTHAT PROTECT THE REFERRALRELATIONSHIPS.>> HOW ABOUT CASES ON THEOTHER SIDE.>> THERE'S A CASE CITED BYDR. TUMMALA'S ATTORNEYS FROMOKLAHOMA WHICH IN THATPARTICULAR -- STATUTORYSCHEME IS DIFFERENT.



BUT IN THAT PARTICULAR CASETHEY BELIEVE THAT THERELATIONSHIP BETWEEN ADOCTOR AND PATIENT WASSOMEHOW DIFFERENT ORGANCALLYTHAN OTHER TYPES OFRELATIONSHIPS.>> THAT'S THE ONLY CASE THATYOU'RE AWARE OF.>> THAT'S THE ONLY CASE I'MAWARE OF.MY COUNSEL MAY HAVE OTHERS.THAT'S THE ONLY CASE I'MAWARE OF.>> THE ONLY WAY TO DEAL WITHCARVE OUT ISSUE FOR THISPROFESSION.THAT'S THE ONLY WAY TO DEALWITH IT.WE CAN'T APPLY THAT TO OTHERPROFESSIONS IN.THE SAME PRINCIPLE IS THERE.>> IS THERE -- THERE ANY WAYSHORT OF DOING THAT THIS CANBE ACCOMMODATED.>> OUR POSITION IS THAT IDON'T KNOW THERE IS.IN A DOCTOR IS ALLOWED TOTAKE ADVANTAGE OF THEREFERRAL RELATIONSHIPS HEDEVELOPS WHILE WORKING WITHTHE EMPLOYER THE ONLY WAY TOPREVENT IS THAT PRECLUDE HIMFROM TAKING REFERRALS BUTNOT PRECLUDE THE DOCTOR FROMTREATING UNKNOWN PERSPECTIVEPATIENTS SLOW -- SO LONG ASTHEY DO COME BY WAY OFPROHIBITED PEFRL.>> I HAVE TO ASK THEQUESTION.I KNOW HOW LAWYER REFERRALSWORK.WHEN A DOCTOR REFERS THEPATIENT, DO THEY THEN GETMONEY FROM THE DOCTOR FORTHE REFERRAL?>> NO.>> SO THE IDEA THAT AND THEREFERRAL IS BASED ON WHETHERTHE DOCTOR WINES AND DINESTHE OTHER DOCTOR AS OPPOSEDTO -- WE'RE TALKING ABOUTSOMEBODY THAT MIGHT HAVE



BREAST CANCER AND I WILLFIND THE BEST PERSON IN THISAREA WHO HAS HAD THE BESTTRAINING TO TREAT YOU.THIS IS LIFE AND DEATH.ARE YOU SANG -- SAYING THEREFERRAL DOCTOR NOW CANNOTTELL THE PATIENT WHO THEBEST DOCTOR IN THE AREA ISFOR TREATING THAT PARTICULARTYPE OF CANCER IF IT'SSOMEBODY THAT WAS IN THISRESTRICTIVE RELATIONSHIP?>> THAT WOULD BE THE EFFECTOF ENFORCING THE RESTRICTTOUGH COVENANT.82 YOU DON'T SEE THAT AS IGUESS WE WILL HAVE TOW ASBEING A SIGNIFICANT PUBLICPOLICY ISSUE AS FAR ASPATIENT HEALTH AND IT'S INTHEIR BEST INTEREST?>> YOUR HONOR, IF THERE WASA LIMITATION IN, IN THE CASEBELOW THERE WERE 60ONCOLOLGIST WHO WEREIDENTIFIED AT TRIAL COURSEAS PRACTICING IN THIS AREAWITHIN THIS TKPAOEOPHOTOGRAPHIC AREA.IT WASN'T LIKE THERE WAS ALIMITATIONAL NUMBER OFQUALIFIED DOCTORS IN THEAREA.BUT STRICTLY SPEAKING ITWOULD PRECLUDE THATREFERRAL.>> THANK YOU FOR YOUR TIME.>> THANK YOU.>> MAY IT PLEASE THE COURTI'M CHRIS CARLYLE.>> I'M HERE WITH SHANNONCARLYLE ON BEHALF OF THERESPONDENT DR. TUMMALA.>> CAN YOU ADRESS FIRST THEISSUE THAT JUSTICE BELLRAISED WHICH IS THE ISSUE INREADING OVER THIS THE ONLYREFERENCE THAT I SEE TOREFERRAL DOCTORS IS A NOTEON WHAT THE TRIAL COURTFOUND.THERE WAS NO EVEN FINDING INTHE APPELLANT COURT ABOUT



REFERRAL DOCTORS.IT WAS A COMPLETELYDIFFERENT ISSUE.>> I AGREE.I POINT OUT IN OUR ANSWERBRIEF THAT FUR -- YOU'RELOOKING AT JURISDICTION THISCASE IS ABOUT AS THIN AS YOUWILL EVER HAVE A CASEPRESENTED TO THIS COURT.IF NOT TO THE INCLUSION OFTWO WORDS IN THAT OPINIONWITHOUT ANY ANALYSISWHATSOEVER.WITHOUT BITING ISSUE.WE DON'T KNOW WHY THOSEWORDS ARE IN THERE BUT THEYUNDENIABLY ARE.DO YOU SUGGEST THAT CASECAN'T BE CITED THAT THOSEREFERRAL RELATIONSHIPS CANBE PROTECTED IN THATOPINION?>> NO, YOUR HONEST HONOR.AGAIN, IT'S THE QUESTION OFA PARENT CONFLICT.THIS COURT HAS I WOULD ADMITDISCRETION.AN APPARENT CONFLICT CASELIKE THIS.>> CAN SOMEONE POINT TO THATAND SAY THIS CASE AFFIRMSTHIS LANGUAGE.AND THAT'S NOT A PRINCIPLEOF LAW.COULD YOU NOT CITE THAT INGOOD FAITH TO A COURT.>> YES, YOUR HONOR.AND, AGAIN, I WAS ASKED TOADDRESS THE ISSUE OF THECONFLICT HERE.THIS COURT HAS DISCRETION TOACCEPT JURISDICTION IN CASESOF THIS TYPE.IT DOES SO OR HAS TO THISPOINT IN THIS CASE, IT MUSTBE AWARE OF THAT.THIS IS REMARKABLY THIN ASFAR AS JURISDICTION GOES FORTHIS COURT HOWEVER THE COURTDOES HAVE THE ABILITY TO DOTHAT.>> THIS CASE SEEMS TOPRESENT THAT HEAD-ON



CONFLICT THAT OCCURS IN APARAGRAPH -- PRACTICE OFPROFESSIONS BETWEEN THEECONOMIC REALITY AND THETRUE PROFESSION.I'VE THINK YOU'VE HEARD FROMTHE BENCH CONCERN FROMVARIOUS MEMBERS ABOUT THISIMPACT -- IMPACTSPROFESSIONAL JUDGMENT ANDTREATMENT IN A VERY, VERYLIFE THREATENING KIND OFAREA.IS IT POSSIBLE IN THIS CASETO SEPARATE IN ANY WAY THISCONCEPT OF PROFESSION FROMJUST PURE RAW ECONOMICS?>> BELIEVE SO YOUR HONOR.>> HOW WOULD THAT BE DONE?>> I THINK THAT THE BENCHAND THE VARIETY OF QUESTIONSABOUT THE UNIQUERELATIONSHIP WE'RE TALKINGABOUT HERE AND I THEIR WEHAVE TO RECOGNIZE THAT.THERE'S AN ENORMOUSDIFFERENT BETWEEN THEMEDICAL PROFESSION AND SALESOF A CERTAIN PRODUCT.>> BUT THERE'S NOT FOREXAMPLE -- YOU REPRESENTYOURSELF AS AN APPELLANT LAWFIRM.MOST OF YOUR CASESFROM -- COME FROM OTHERLAWYERS; DO THEY NOT?>> CORRECT.>> WE'VE PROHIBITED THAT FORLAWYERS.BUT I DID AN APPELLANTPRACTICE.I -- MY MOST IMPORTANTCLIENTS WERE THE TRIALLAWYERS.>> SURE.I THINK THE KEY TO THE CASEAND WHAT WE HE'D TO LOOK ATIS THE STATUTE ITSELF ISWHAT WE'RE CONSTRAINED BY.THE JUSTIFICATION AND THEHISTORY AS TO WHY THESTATUTE EXISTS.IT'S NOT ENOUGH TO SAY YESTHIS IS IMPORTANT.



WE NEED TO TAKE IT TO THELEVEL AND ANALYZE IT IN THECASE OF LEGITIMATE BUSINESSINTEREST.AND THE STATUTE IS CLEAR.TO SUGGEST THAT THERELATIONSHIP WITH THEREFERRING PHYSICIAN ISSOMEHOW DIVORCED ORSEPARATED FROM -- FROM THATPHYSICIAN PROVIDE MEANINGTHE PATIENTS, IS SIMPLYDOESN'T MAKE SENSE.IF IT'S A SOCIALRELATIONSHIP YOU MAINTAINTHAT IT'S NOT A BUSINESSINTEREST.THAT'S NOT WHAT WE ARETALKING ABOUT.THE STATUTE IS CLEAR THATIF -- IF WHAT THEY PROVIDETHOSE BE SPECIFICSUBSTANTIAL RELATIONSHIPIDENTIFIABLE.>> DO YOU AGREE THE STATUTETHE RESSE IS TANION ARE NOTEXCLUSIVE.>> THE STATUTE SAYSINCLUDING BUT NOT LIMITEDTO.HOWEVER, IT'S OUR POSITIONTHAT TO ACCEPT THEPETITIONER'S POSITION IS TOTAKE THAT PROVISION ANDACCEPT THE OPPOSITE OF IT.IF THE STATUTE HAS SOMETHINGSPECIFICALLY LISTED IN THESTATUTE, YOU CAN'T THENACCEPT SOMETHING NOTLITT -- LISTED THAT CON TOVACCINES.>> IF THERE WAS NO OF YOURARGUMENT I ASSUME IF THERE'SNOT A SUBSTANTIALRELATIONSHIP THEN IT'S NOT ALEGITIMATE BUSINESSINTEREST.>> THE ANSWER OR THEARGUMENT IS BASED ON THEFIFTH DCA'S OPINION ANDSANAL WHICH SAID THE STATUTEIS CLEAR.AND THE RELATIONSHIP MUST BESUBSTANTIAL AND



IDENTIFIABLE.>> THAT'S NOT WHO THE CASEIS ABOUT, NOT PERSPECTIVECLIENTS OR PATIENT.IT'S ABOUT THE REFERRAL.>> AGAIN, YOUR HONOR.>> TO ME THE FIRST DCADIDN'T TOUCH ON THAT AT ALL.>> ABSOLUTELY.>> LET'S GO BACK TO THEOTHER QUESTION.YOU AN -- YOU AS ANAPPELLANT LAWYER ARE YOUARGUING THAT YOUR REFUSALBASE ARE NOT IN THE POSITIONOF CLIENTS VIEW?>> THE WAY THIS IS DEFINEDIT THE STATUTE IS APATIENT -- A -- THE WORD"PATIENT.">> IT DOESN'T SAY CUSTOMERSWRAOS RESPECTIVE CLIENTS.>> CLIENTS I ASK YOU ASIMPLE QUESTION.YOU CAN CERTAINLY EXPLAIN ITAWAY.DO YOU NOT AS AN APPELLANTSPECIALIST CONSIDER YOURREFERRAL ATTORNEYS WHO SENDYOU THE ACTUAL CASES.THOSE PEOPLE DON'T KNOW YOUAT ALL.YOUR REFERRAL ATTORNEYS SENDYOU THOSE CASES.THOSE -- YOU DON'T CONSIDERTHEM TO BE YOUR CLIENTS.>> WELL, YOU UR HONOR AT THETOEFPBD DAY THE CLIENT ISTHE PERSON YOU.>> THE PERSON YOU THINK AREARE YOU HRAOEUPBTS.>> WE UNDERSTAND YOUREPRESENTATIVE YOU WILLTREAT A PATIENT.I THINK ANY WAY THAT'S YOURPOSITION.>> THE IS DEFINED INSTATUTE.TO USE GENERIC TERM CLIENTSWE SERVE CLIENTS.WE'VE TALKED TO REFERRINGATTORNEYS TO GET THIS.THE -- AT THE OWNED OF THEDAY THE CLIENT IS PERSON WE



HAVE A CONTRACTUALRELATIONSHIP WITH.REFERRAL ATTORNEY IS NOT?>> WE DON'T HAVE ACONTRACTUAL RELATIONSHIP.>> MAYBE THAT'S THE ANSWERTHE CONTRACTUALRELATIONSHIP.I THINK,EN, WE NEED TO LOOKAT THE CONTEXT OF WHAT WE'RETALKING ABOUT HERE.AND WE'RE TALKING ABOUTPHYSICIANS AND WE NEED TOALSO -- I THINK IT'SIMPORTANT TO LOOK AT THELEGISLATIVE HISTORY OF THESTATUTE AND I CITED ANARTICLE FLORIDA BAR JOURNALFROM 1996 ADDRESSING JUSTICEWELLS QUESTION EARLIER IT'SIMPORTANT OVER THE EVOLUTIONOF THE HISTORY OF THISTHROUGHOUT THE STATE.YOU WENT FROM THE UNFAIRCOMPETITION ANALYSIS AT ONEPOINT MORE OF CONTRACTUALANALYSIS AND LEGISLATURECAME BACK IN 1996 AND CITEDWITH THE IDEA OF UNFAIRCOMPETITION BEING SORT OFTHE GUIDEPOSE.LET ME DISTRICT YOURATTENTION THAT.BECAUSE I WOULD LIKE TOUNDERSTAND WHAT YOURPOSITION IS AND WHATPROVISION FOR THE STATUTEMEANS WHEN IT SAYS "SHALLCONSIDER THE EFFECT OFENFORCEMENT OF PUBLIC HEALTHSAFETY AND WELFARE, A COURTSHALL CONSTRUE A RESTRICTEDCOVENANT IN FAVOR OFPROVIDING REASONABLEPROTECTION TO ALL LEGITIMATEBUSINESS INTEREST.A COURT SHALL NOT EMPLOY ANYRULE OF CONSTRUCTION THATREQUIRES A COURT TO CONSTRUEA RESTRICTIVE COVENANTNARROWLY AGAINST RESTRAINTOR AGAINST THE DRAFT OROTHER CONTRACT."THAT'S RATHER UNUSUAL.



BUT IT'S EXPRESS LANGUAGE ASTO HOW THIS IS CON TRUED.YES, I THINK -- I THINKTHERE'S A BIT OF CONFUSIONMAYBE IN THE PREVIOUSQUESTIONING ABOUT TWODIFFERENT ISSUE INVOLVINGPUBLIC INTEREST.AND ONE ISSUE IS SET FORTHIN THE STATUTE BEING IF I'MSEEKING TO ENFORCE THIS THEISSUE OF PUBLIC INTERESTABOUT ENFORCEMENT OF THISRESTRICTIVE COVENANT COMESTO PLAY.THAT ISSUE WAS PLED ANDBROUGHT FORTH AT THE TRIALCOURT.BUT THE TRIAL COURT NEVERGOT TO THAT POINT.I THINK THAT'S RECOGNIZED INTHE OPINION.THE BROADER QUESTION ABOUTPUBLIC INTEREST OR PUBLICPOLICY, I THINK, WAS BROUGHTUP BY JUSTICE PARIENTE ANDJUSTICE QUINCE IS THERE NOTA PUBLIC POLICY ISSUE TOSEEK OUT A CERTAIN DOCTOR.I THINK THAT GOES TWAOBGWHAT WE TALK ABOUT HERE THEISSUE OF UNFAIR COMPETITION.I WOULD TEND TO AGREE WITHJUSTICE CONVINCE IF I HAVECANCER I WOULD LIKE TO SEEANY DOCTOR I WOULD NOT LIKETO -- LIKE TO BE CONSTRAINEDBY CONTRACT.BE THE STATUTE WE'RE DEALINGWITH SAYS EXISTING PATIENTSOF A MEDICAL PRACTICE ARELEGITIMATE BUSINESS INTERESTIN -- AND CAN'T BE SEEN.DR. TUMMALA DIDN'T SEE ANYEXISTING PATIENT AND WENT TOGREAT LENGTHS TO DO THAT.ON THAT ONE.I WANT TO MAKE SURE.YOU'RE NO -- ARE NOTCONTESTING.SOMEONE IS BEING ACTIVELYTREATED IN THIS CASE FORCANCER.THE DOCTOR IS THE EXPERT ON



THE --[INAUDIBLE]>> THAT'S DR. LEE 12346789THE PATIENT IS PROHIBITEDUNDER THIS STATUTE FORCONTINUING -- TO SEEKCONTINUING TREATMENT WITHTHAT DOCTOR.>> I BELIEVE THAT'S THECASE.>> NOBODY SAID THAT, THAT'SAGAINST PUBLIC POLICY OR THEPUBLIC INTEREST?EVER?>> I BELIEVE THE CLEARWORDING OF IT AND SANALTALKS ABOUT EXISTINGPATIENT.THINK THE STATUTE IS CLEAR.THAT'S NOT TO SAY SOMEONECAN'T POTENTIALLY ARGUETHERE'S A PUBLIC POLICYARGUMENT THAT COULD OVERRIDETHAT.I'M CHAGRIN THAT NOBODY ISRAISING THAT.IT SEEMS WE ARE, AGAIN TOCOMPARE THIS TO SOMEBODY WHOIS A SALES REP FOR A DRUGCOMPANY YOU KNOW AND I DON'TKNOW WHETHER DR. TUMMALA ISTHE BEST, THE WORST, BUT WEALL KNOW THAT DOCTORS -- IMEAN WOULD I WOULD HOPE THATDOCTORS AREN'T REFUSINGPATIENT TO DOCTORS BASED ONWHO HAS GIVEN THE BESTDINNER LAST WEEK.AND I GUESS THAT'S GOINGBACK TO THIS ISSUE OF YOURPHYSICIAN -- LET ME ASK ISTHAT A SUBSTANTIALRELATIONSHIP, WHATEVER THATIS SUPPOSED TO MEAN REALLYCAN'T BE DEVELOPED IN TERMSOF A DOCTOR TODOCTOR -- BECAUSE DOCTORSARE REFERRING TO ALL SORTSOF PEOPLE ALL THE TIME.AND THAT'S JUST -- THATREFERRAL RELATIONSHIP ISN'TWHAT IS INTENDED IS ALEGITIMATE BUSINESSINTEREST.



THAT'S ESSENTIALLY YOUR.>> ESSENTIALLY TWO POINTSAGAIN THE STATUTE SAYSSPECIFIC IDENTIFIABLEPATIENT AND AS THE FIFTH SETFORTH IN THIS CASE WHAT THEREFERRING PHYSICIANS PROVIDEIS STREAM OF UNIDENTIFIEDPATIENT SOMEWHERE.>> IF THEY SAY I GO BACK TOWHAT JUSTICE LEWIS IS SAYING.IF IT'S NOT EXCLUSIVE, ANDIF SOMEBODY CAN LOOK AT WHATTHIS RELATIONSHIP WAS ANDSAY THAT, IN FACT, THISWAS -- YOU KNOW THEY BOTHWENT TO COLLEGE TOGETHER.THEY BOTH WENT HERETOGETHER.THEY ARE JOINED AT THE HIP.AND THAT HAS BEEN -- THEY GOFISHING TOGETHER -- ANDTHAT'S WHY THEY REFER.IS THAT A BUSINESS -- OR ISTHAT A SUBSTANTIALRELATIONSHIP?SO IT SEEMS LIKE IT'S ALMOSTA FACT-INTENSIVE SITUATION.I GUESS HERE WE'RE SAYINGIT'S AN ALL OR NOTHING.EITHER THESE REFERRALRELATIONSHIPS QUALIFY ASUBSTANTIAL RELATIONSHIPS ORTHEY DON'T.IF THEY COULD, MAYBE THERE'SSTILL A BURDEN TO PROVE THATTHE PARTICULAR RELATIONSHIPIN THAT CASE IS THE TYPETHAT'S CONTEMPLATED AND THATGOES BACK.>> I AGREE WITH YOU IN SOMESENSE.YOU WERE PRESENTED WITH THEHYPOTHETICAL LEGAL QUESTIONWITHOUT ANY FACTS ATTACHEDTO IT.MEANING CAN THEY BE ALEGITIMATE BUSINESSINTEREST.HOWEVER, THAT.>> AND JURISDICTION THATTHEY CAN NEVER BE; ISTHAT -->> OUR POSITION IS THAT WE



AGREE WITH THE FIFTH DCA INTHE CONTEXT OF PHYSICIANSTHAT WE'RE DISCUSSING HERETHEY ARE NOT BECAUSE THESTATUTE SAYS THEY ARENOD -- NOT.WHAT THEY PROVIDE IS STREAMOF PATIENT THAT WILL BECOMING TO SOMEONE IN THEFUTURE THAT ARE NOTIDENTIFIED.THIS SEEMS TO IGNORE THEFACT THAT THE LIST IN THESTATUTE ISS NO -- NOTEXCLUSIVE.THEY DON'T SEEM TO RECOGNIZETHAT.THEY SEEM TO INTERPRET THATAS IF IT IS NOT ON THE LIST,IT'S NOT A LEGITIMATEBUSINESS INTEREST.WELL, RESPECTFULLY, IDISAGREE.YOU CAN HAVE A BUSINESSINTEREST THAT ARE NOT ON THELIST.BUT DOES THE FIFTH DCARECOGNIZE THAT?>> BELIEVE SO YOUR HONOR.I BELIEVE WHAT WE ARETALKING ABOUT -- AGAIN, IFSOMETHING -- YOU CAN'T HAVESOMETHING THAT CONTRIBUTESTHE ONE THAT IS.IF THE THING IS IN THESTATUTE FOR A REASON THEYCHOSE TO PUT THE WORDING INABOUT SUBSTANTIALRELATIONSHIP FOR SPECIFICIDENTIFIABLE PATIENT.AGREE TO HAVE A LEGITIMATEBUSINESS INTEREST ANDREFERRING PHYSICIANS UNDERTHE STATUTE THERE HAS TO BEA SUBSTANTIAL RELATIONSHIPWITH SPECIFIC REFERRINGPHYSICIANS.BUT WHAT IF THERE IS ONE?WHAT IF BAR MR. TUM GOTTHERE THEY HAD SUBSTANTIALRELATIONSHIP WITH SEVERALREFERRING PHYSICIANS THATHAD BEEN REFERRING FOR 20YEARS PATIENTS AND THEN THEY



HAD SAID WE WANT YOU TOHANDLE SOME OF THE PATIENTTHAT DR. LEWIS JUST REFERREDTO US.AND THEN AFTER HE LEAVES HEDEVELOPED A RELATIONSHIPWITH DR. LEWIS.ISN'T THAT A LEGITIMATEINTEREST FOR THE EMPLOYER?>> I DON'T THINK SO YOU URHONOR.HERE'S WHY.AGAIN, I YOU DON'T ELIMINATETHE WORDING OF YOUR STATUTEBY THE INSERTION OF THISREFERRAL DR. INTO THEEQUATION.SECONDLY WHEN WE TALK ABOUTTHE UNFAIR COMPETITIONANALYSIS THAT YOU HAVE TOVIEW THE STATUTE UNDER IFTHE BUSINESS ITSELF AND THEPREVIOUS DOCTORS THERE WERESUCH A LEVEL THEN THEREFERRALS WILL CONTINUE TOCOME REGARDLESS OF WHO WASPLOYED THERE.THAT'S NOT PART OF WHETHERYOU ARE GOOD OR BAD BUSINESSPERSON OR SHOE SALES PERSON.THAT'S NOT PART OF THEEQUATION.>> BUT YOUR HONOR -->> IF YOU HAVE A GOOD REASONFOR NOT GOING TO ENFORCE IT.>> WHAT YOU ARE SAYING YOUCAN ONLY ENFORCE THECOVENANT IF YOU DON'T HAVETO.>> I'M SORRY.>> YOU'RE SAYING YOU CANONLY ENFORCE THE KOF TPHUPBTIF YOU DON'T HAVE TO BECAUSETHE REFERRING PHYSICIAN -->> I THINK THERE WAS AQUESTION ASKED ABOUT CASESFROM OTHER JURISDICTION.I CITED A COUPLE IN THEBRIEF INCLUDING ONE FROMOHIO THAT SAID IT'S A MATTEROF COMMON SENSE THATREFERRALS ARE MADE TOPHYSICIANS AND THAT PRACTICECAN SUFFER NO LOSS OF



REFERRAL BASE BECAUSE THEYHAVE NO REFERRAL BASE AS ACORPORATION.>> I DON'T BYE THAT ONEBECAUSE THE SAME THING HASTO DO WITH PATIENTS?THE PATIENT COMES TO ADOCTOR, NOT A PRARBGS.MAYBE SOMETIMES THEY DO MOSTOF THE TIME THEY COMEBECAUSE THAT DOCTOR ISTHERE.SO I THINK THAT THIS THINGI'M GETTING MORE AND MORECONCERNED ABOUT IS WHETHERRELATIONSHIP BETWEENREFERRAL DOCTORS ACTUALLYCAN BE BUSINESS RELATIONSHIPAND, THEREFORE LEGITIMATEBUSINESS INTEREST.JUST LEWIS USED IN THEAPPELLANT ANALOGY, OBVIOUSLY,AGAIN, THIS ISN'T SOMETHINGTHAT IS ANALOGIZED TO LAWYER,BUT LAWYERS HAVE REFERRALRELATIONSHIPS THERE'S NEVERLIKE THEY COULD BE REFERRINGTO DIFFERENT PEOPLE.BUT THEN WHEN THEY HAVE THATRELATIONSHIP THERE'S THATBUSINESS RELATIONSHIP.THEY BOTH HAVE TO CONTRIBUTETO JUST THAT CLIENT.HERE IF I UNDERSTAND THISTHE REFUSAL IS MADE, THERE'SNO MONEY THAT IS EXCHANGED.THERE IS -- I DON'T KNOW IFUNDER ETHIC CODE TEARS OTHERTHINGS THAT THEY CAN DO FORTHE DOCTOR, BUT WHERE IS INTHE RECORD THE EXPLANATIONOF WHAT IS THE BUSINESS OFTHE REFERRAL DOCTOR.WHAT IS THAT BUSINESSRELATIONSHIP?>> AGAIN, I THINK.>> IT SEEMS THAT THIS IS AFAILURE OF PROOF IT CAN BEONE THIS, THIS CASE.>>, I THINK, AGAIN IN THEPOSITION THAT WE'REEXPRESSING IS AND I THINKYOU'RE EXACTLY RIGHT.WHAT IS THE RELATIONSHIP



BETWEEN THE PHYSICIAN ANDTHE REFERRAL PHYSICIAN -->> THE REFERRING PHYSICIANIN THESE CASES IS GENERALPRACTITIONER WHO 'TISCOVERED CANCER, THEN THERE'SNO LONGER INVOLVED IN THETREATMENT OF THAT PATIENT.IS THAT WHAT YOURY SANG,THEN IT'S A CONTINUINGRELATIONSHIP BUT IF NOT, I'MSORRY.I'M MISSING THE WHOLE POINTOF THAT ARGUMENT.>> IT SEEMS TO ME ANONCOLOLGIST YOU ARE DOINGTREATMENT ON CANCER PATIENT.IS THAT A FAIR STATEMENT?>> I BELIEVE SO YES.>> THE ONLY WAY THE PATIENTDON'T WALK INTO THAT OFFICETHEY COME BECAUSE SOMEONE ISDIAGNOSED A CONDITION FORWHICH THAT PROFESSION, THATPROFESSIONAL TREATS.>> THE FIRST PERSON DOESN'TJUST AND THEM AND LEAVE THEMDO THEY?>> NO.>> THERE'S CONTINUING WORKWITH THAT PERSON.>> THERE'S A CONTINUINGRELATIONSHIP BETWEEN THEDOCTOR ANDTY -- THE PATIENTAND PERHAPS SOME SPWRARBGSBETWEEN THE TWO DOCTORSINVOLVED.>> I WOULD HOE SO.I THINK WHAT A DIFFICULTYHERE IS WHAT DOES A REFERRALPHYSICIAN PROVIDE TO THEDOCTOR?HE PROVIDES UNIDENTIFIEDSTREAM OF PATIENTS.THE STATUTE SAYS THOSE ARETO BE SPECIFIC AND IDENTIFYTOABLE WITHIN A BUSINESSINTEREST.THEY ARE NOT.THAT'S WHAT SANAL SAID.THAT'S WHAT THE FIFTH DCASAID.IS IT A BUSINESSRELATIONSHIP WITHOUT THOSE



PATIENTS BEING REFERRED?NO.IF IT'S A SOCIALRELATIONSHIP, IF IT'SSOMETHING ELSE, THEN ITDOESN'T MATTER AND DOESN'TREQUIRE PROTECTION UNDER THESTATUTE.>> THINK YOUR ARGUMENT ISTHERE'S SOMETHING UNIQUEABOUT MEDICINE.>> ABSOLUTELY.RATHER THAN ECONOMICARGUMENT BECAUSE THEECONOMICS THIS IS WHERE THEYCOLLIDE.>> ECONOMICS COLLIDE HERE.LET ME ASK YOU A QUESTION.DO YOU AGREE THAT REFERRALPHYSICIANS ARE NOT CUSTOMER'SPATIENTS OR CLIENTS?>> THAT'S OUR POSITION THEYARE NOT.IF THE PATIENTS ARE WHAT THEDOCTOR ULTIMATELY IS SEEING.THE REFERRAL PHYSICIAN ISNOT DEFINED BY THE STATUTE.>> AND IF MY CONCERN IS IFWE LIMIT OR INCLUDE THEBROAD TERM REFERRALPHYSICIAN AS A BUSINESSINTEREST OUTSIDE THEEXCLUSIVE LIST HERE THENDOESN'T THAT DO AWAY WITHNARROWNESS OF THE DEFINITIONOF CUSTOMERS, CLIENTS ANDPATIENTS THAT THEY BESUBSTANTIAL RELATIONSHIPSWITH SPECIFIC PERSPECTIVECLIENTS.DO YOU UNDERSTAND MYQUESTION SKWRAOPL I'M TRYINGTO UNDERSTAND YOUR QUESTION.WE -- IF WE ACCEPT THEARGUMENT OF YOUR OPPONENTWHICH REFERRAL POSITIONSWHICH IS THE SOLE BASIS,BASICALLY OF SUBSPECIALISTLIKE YOUR CLIENTS OFRECEIVING PATIENTS, THENAREN'T WE JUST TOTALLYEVISCERATING THE LIMITATIONOF THIS?>> I BELIEVE SO.



>> I THINK SO.AND I THINK THAT AGAIN THECOURT HAS FOCUSED AND TALKEDABOUT THE NATURE OF THEPHYSICIAN RELATIONSHIP AND ITHINK THAT IS PART OF THIS.AND I THINK THE WORDING OFTHE STATUTE IS CLEAR ON THISPOINT, ALSO.>> WILL THERE BE ANYDIFFERENCE IF YOUR CLIENTHAD ACTUALLY GUN OUT AND DIDWHAT HE DID AT -- GONE OUTAND DID WHAT HE DID AT THECORPORATION AND COURTED THEREFERRING PHYSICIANS IN THESAME MANNER THAT HE DID ATTHE CORPORATION.IS THAT DIFFERENT FROM THESEREFERRING PHYSICIANS SIMPLYGIVING -- IF REFERING THEPATIENT WITHOUT HIM GOINGTHROUGH THE STEP OF TRYINGTO ENTERTAIN THEM AND GETTHEM FOR THE CLIENT.>> I DON'T BELIEVE SO ANDHERE'S WHY.THE TERM LEGITIMATE BUSINESSINTEREST AND THAT ARTICLE ISIGNED TALKS ABOUT IT BEINGAN ASSET THAT IFMISAPPROPRIATED WOULD GIVEITS NEW OWNER UNFAIRCOMPETITIVE SRABG OVER THEFORMER OWNER.THE RELATIONSHIP THAT DOCTORHAS OR HIS REPRESENTATION ISNOT AN ASSET OF THE PREVIOUSEMPLOYER.IT'S SOMETHING THAT ISUNIQUE TO THAT DOCTOR ANDONCE HE LEAVES I SEE MY TIMEIS UP.CAN I FINISH ANSWERING THISQUESTION, PLEASE.>> ONCE HE LEAVES, FEHN YOUCAN'T FORCE THOSE DOCTORSWHO REFERRED TO HIM HERE TOCONTINUE REFERRING TO THEFORMER BUSINESS.HIS REPRESENTATION THAT HEDEVELOPED AND THAT'S WHY HEGETS REFERRALLED GOES WITHHIM WHEREVER AND YOU CAN'T



SAY GIVE THAT REPRESENTATIONBACK FORMER EMPLOYER.WE WILL PROTECT THAT.IT'S NOT THEIR ASSET.IT'S A UNIQUE SITUATIONINVOLVING A DOCTOR WHERE HISREPRESENTATION IS WHAT GAINSTHE REFERRALS AND ONCE HELEAVES IT'S FAIR COMPETITIONTO SAY THAT THOSE DOCTORSCAN CHOOSE TO REFER TO THEPREVIOUS EMPLOYER.>> THANK YOU VERY MUCH.>> QUESTIONS WERE BEING ASKINSTEAD.LET ME BE THE FIRST TO TAKEUP YOUR 35 SECONDS.>> THE HE REALLY MEANS IT.>> UNLESS WE HAVE MENTALTELEPATHY GOING ON.IN THE PREPARATORY LANGUAGEOF THIS STATUTE IN THE VERYOPENING PARAGRAPH, THELEGISLATURE TALKS ABOUTAUTHORIZING RESTRICTIVECUFFNANTS THEN THEY HAVEQUALIFIERING LANGUAGE SOWRONG AS SUCH CONTRACTS AREREASONABLE AND THEY TALKABOUT IN TIME AREA BUT THEYALSO SAY IN LINE OFBUSINESS.AND SO ISN'T THAT A SIGNALTHAT THE LEGISLATURE WANTSBOTH PEOPLE IN PROFESSIONSOR BUSINESSES OR WHATEVERAND ALSO WANTS COURTS.>> OKAY.>> TO LOOK AT THE LINE OFBUSINESS THAT IS BEINGAFFECTED.AND I ASK THAT WITHREFERENCE TO THE QUESTIONTHAT HAVE BEEN ASKED OF YOUHERE WITH REFERENCE TO THISUNIQUE RELATIONSHIP OFPHYSICIAN IN PATIENT ANDWHAT WE HAD THE IMAGE OF ISA PATIENT WHO ISUNFORTUNATELY STRICKEN WITHA SERIOUS CANCER, A DISANDNOW THE PHYSICIAN THAT HASBEEN TAKEN CARE OF HER ANDLEAVES THE TKPWRAOEP -- GROUP



AND SHE HAS FORMED THIS VERYSPECIAL AND IT'S AS MUCH ANEMOTIONAL RELATIONSHIP ASTHE CONFIDENCE IN THEPHYSICIAN AND ALL THAT AS ITIS ANYTHING ELSE AND WE HADTHE SPECTER UNDER APROVISION LIKE THIS THAT,THAT PATIENT CAN'T CONTINUETO GO TO THAT DOCTOR ONCETHAT DOCTOR LEAVES THATGROUP.AND I'M REALLY ASKING YOUISN'T THIS WHAT THELEGISLATURE MEANT WHEN ITASKED THAT WE CONSIDER THELINE OF BUSINESS TO CONSIDERFACTORS LIKE THAT AND THEWAY THAT WE INTERPRET THESESTATUTORY PROVISIONS.>> I GUESS MY RESPONSE WOULDBE THE LEGISLATURE USED WORD"EXISTING PATIENTS" AS ALEGITIMATE BUSINESS INTERESTSPECIFICALLY IN THE STATUTE.AND THE WORD PATIENTTYPICALLY MEANS PATIENT WITHREGARD TO A PATIENT/DOCTORRELATIONSHIP AND THEYCLEARLY INTENDED TO PROJECTTHE RELATIONSHIP WITHEXISTING PATIENTS.>> HOW COULD IT BEREASONABLE?IF YOU HAVE A PATIENT WHOHAS THIS RELATIONSHIP WITHTHE PHYSICIAN AND THEY ARETOLD THEY CANNOT GO TO THISDOCTOR.TELL ME HOW THAT COULDPOSSIBLY BE REASONABLE?>> YOUR HONOR OUR RESPONSEWOULD BE ONLYTHAT -- NONCOMPETE CASESWHICH HAVE CONSTRUED THESTATUTE THAT FOCUS OFREASONABILITY AS ALWAYS BEENON GEOGRAPHIC SCOPE, THENONCOMPETE AND WHETHER ORNOT IT IS A LEGITIMATEBUSINESS INTEREST WHICH CANBE PROTECTED UNDER THESTATUTE.I DON'T BELIEVE THERE'S EVER



BEEN A CASE WHICH ISADDRESSED DIRECTLY OR HEADON.IS IT REASONABLE FOR -- FORAN EXISTING PATIENT TO NOLONGER BE ABLE TO SEE ADOCTOR WHO THEY PREVIOUSLYHAVE BEEN SEEING BECAUSE THEDOCTOR -->> IS THAT A VALIDCONSIDERATION?>> IT CERTAINLY VALIDCONSIDERATION ANDFURTHERANCE TO ONE OFJUSTICE LEWIS COMMENTS TO MEEARLIER IS UNLESS THIS COURTIS PREPARED TO MAKE ADISTINCTION BETWEEN THEMEDICAL PROFESSION AND ANYOTHER PROFESSION IN BUSINESS,IN THE WAY THAT INTERPRETSTHIS STATUTE BECAUSE, AGAINTHE FIFTH CAN'T MAKE THISDISTINCTION.THE FIFTH SIMPLY INTERPRETEDTHE STATUTE TO SAY YOU CAN'TPROTECT REFERRALRELATIONSHIPS AND THECONCERN THAT PETITIONERSHAVE BEYOND JUST THISPARTICULAR AREA IS THISLOGIC WOULD EFFECT ANYGATEKEEPER RELATIONSHIP.UNLESS THIS COURT ISPREPARED TO INTERPRET THESTATUTE TO MAKE ADISTINCTION FOR DOCTORSRATHER THAN.>> YOU'RE OUT OF TIME.ONE LAST QUESTION.WHY HAS PRESIDENT STATUTEMADE THAT DISTINCTION?WHERE IT SAYS IN DETERMININGTHE ENFORCEABILITY OF ARESTRICTED COVENANT A COURTSHALL CONSIDER THE EFFECTIVEENFORCEMENT UPON THE PUBLICHEALTH SAFETY AND WELFARE?SO IT SEEMS -- WHY ISN'TTHAT A CARVING OUT OFA -- THIS TYPE OF SITUATIONWHEN YOU TALK ABOUTPATIENTS.>> I THINK IT IS JUSTICE



WELLS.I THINK IT'S ON ACASE-BY-CASE BASE -- BASIS.IN THIS CASE THE TESTIMONYWAS THAT THERE WERE 60ONCOLOLGIST ON THISGEOGRAPHIC AREA WHO WEREBOARD CERTIFIED IN THE AREASOF HEMATOLOGY AND ONCOLOGY.DR. TUMMALA WAS NOT THE ONERARE PHYSICIANS FROM THE1976 CASE.THAT'S ABSOLUTELY CORRECT.A TRIAL COURT IS SUPPOSED TOLOOK AT THOSE ISSUES ANDMAKING THAT DECISION.I AM ONLY AWARE OF ONE TIMEIN ALL THE JURISPRUDENCE OFTHE STATE OF FLORIDA WHERETHAT HAS BEEN SUFFICIENT TOOVERRIDE THE RESTRICTEDCOVENANT.>> WE THANK YOU FOR THEARGUMENTS ON A VERYIMPORTANT CASE ANDAPPRECIATE YOU HELPING USRESOLVE THIS.AND WE WILL TAKE IT UNDERAADVISE.THE COURT WOULD LIKE TOACKNOWLEDGE THE PRESENCETHIS MORNING FROM ONE OF OURFINE LOCAL UNIVERSITIESFLORIDA A&M UNIVERSITY THELEGAL ENVIRONMENTAL BUSINESSLAW CLASS AND DR. RICHARDWRIGHT HERE THIS MORNING FORARGUMENT WE'RE GLAD YOU AREHERE AND WE HOPE YOU FINDTHEM INFORMATIVE.

Florida Hematology & Oncology Specialists v. Rambabu...

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