[Cite as Castillo-Sang v. Christ Hosp. Cardiovascular Assocs., L.L.C., 2020-Ohio-6865.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
MARIO CASTILLO-SANG, M.D., : APPEAL NO. C-200072 TRIAL NO. A-1905278 : Plaintiff-Appellee, : vs. O P I N I O N. : THE CHRIST HOSPITAL CARDIOVASCULAR ASSOCIATES, : LLC, : Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 23, 2020
The Janszen Law Firm and August T. Janszen, for Plaintiff-Appellee,
Vorys Sater Seymour and Pease LLP, Nathaniel Lampley, Jr., and Emily E. St. Cyr, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} The Christ Hospital Cardiovascular Associates, LLC, (“TCHCVA”)
appeals the trial court’s judgment granting a preliminary injunction in favor of
former employee Mario Castillo-Sang, M.D., that enjoined TCHCVA from enforcing a
covenant not to compete contained in Castillo-Sang’s employment agreement.
Because the trial court did not abuse its discretion in granting the preliminary
injunction in favor of Castillo-Sang, we affirm the trial court’s judgment.
Background
{¶2} Castillo-Sang was hired by TCHCVA in May 2015 as a cardiothoracic
surgeon. In addition to performing other open-heart and cardiothoracic surgeries,
Castillo-Sang specializes in two specific cardiovascular procedures: minimally
invasive mitral valve repair and replacement (“Mitral Valve”) and left ventricular
assist device therapy (“LVAD”).
{¶3} The Mitral Valve surgical procedure involves performing open-heart
surgery through a two-inch incision in the right chest and a one-inch incision in the
groin, rather than the traditional sternotomy surgical procedure, which involves
cutting through the patient’s breastbone to perform the mitral valve repair or
replacement. The Mitral Valve procedure allows the surgery patient to recover
faster, with less pain and less need for narcotics. It also requires fewer blood
transfusions and a shorter hospital stay for the patient. LVAD is a cardiovascular
surgical procedure in which a mechanical pump is implanted into a patient with
heart failure, enabling the bottom left chamber of the heart to pump blood out of the
ventricle to the aorta.
{¶4} When TCHCVA hired him in 2015, Castillo-Sang was an expert in
Mitral Valve and LVAD surgical procedures. Castillo-Sang developed his expertise
during his cardiothoracic surgical residency at the Washington University School of
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Medicine, during his additional training in Minimally Invasive Mitral Surgery at the
Leipzig Heart Center, and during his surgical experience at the Medical University of
South Carolina. While at TCHCVA, he gained more experience and expertise.
{¶5} Castillo-Sang’s employment agreement with TCHCVA contained a
covenant not to compete which provided in relevant part:
* * * During Physician’s employment under this Agreement and for a
period of twelve (12) months following the termination of such
employment (the “Restricted Period”), Physician shall not, within
Hamilton County and all contiguous counties (the “Restricted Area”)
personally or through any agent or family member in any manner,
engage directly or indirectly, in any business activity which is directly
or indirectly competitive with the Medical Practice’s or TCHCVA’s or
Hospital’s operations * * *.
Employment Agreement, Section 11.B.
{¶6} Castillo-Sang also agreed to keep secret and not disclose or use
“TCHCVA’s programs, staff recruitment programs, trade secrets, patient lists,
physician lists, patient programs, patient charts, records, files, computer data” and
all other information relating to, among other things, TCHCVA’s business practices,
financial and billing information, pricing policies, marketing information, business
acquisition plans, new personnel acquisition plans, and technical processes, all
defined as “Confidential Information.” Employment Agreement, Section 11.D. He
also agreed not to solicit any patients of TCHCVA, Employment Agreement, Section
11.E, or to solicit any employee of TCHCVA to leave the practice, Employment
Agreement, Section 11.F.
{¶7} With respect to all of these restrictions, Castillo-Sang agreed:
Physician acknowledges that the terms and conditions of the
restrictive covenants in this Agreement are reasonable and necessary
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for the protection of TCHCVA and Hospital’s business, trade secrets
and Confidential Information and to prevent damage or loss to
TCHCVA and Hospital as a result of actions taken by Physician. The
parties further agree that the limitations and parameters put on these
covenants are reasonable and should be enforced by any court of
competent jurisdiction without variance therefrom.
Employment Agreement, Section 11.G.
{¶8} Castillo-Sang further acknowledged that TCHCVA could seek an
injunction in case of breach of any of these restrictions or covenants. Employment
Agreement, Section 11.G.
{¶9} Finally, the employment agreement contained the following:
The provisions of this Section 11, regardless of the reasons for
termination, shall survive the termination of this Agreement.
NOTWITHSTANDING THE FOREGOING, IF THE RESTRICTIONS
HEREIN SPECIFIED ARE ADJUDGED UNREASONABLE IN ANY
COURT PROCEEDING, THE PARTIES HEREBY AGREE TO THE
REFORMATION OF SUCH RESTRICTION BY THE COURT TO
LIMITS WHICH IT FINDS TO BE REASONABLE, AND THE
PARTIES WILL NOT ASSERT THAT SUCH RESTRICTIONS
SHOULD BE ELIMINATED IN THEIR ENTIRETY BY SUCH COURT.
THE PARTIES ACKNOWLEDGE THAT THE TERMS OF SECTION
3.A, 10, AND 11 HAVE BEEN NEGOTIATED AT ARM’S LENGTH
WITH ADVICE OF COUNSEL. THE PARTIES AGREE SUCH THAT
SUCH RESTRICTIONS SHALL BE LEGALLY ENFORCEABLE AND
SHALL NOT BE CHALLENGED BY ANY PARTY IN ANY COURT
PROCEEDING. THE PHYSICIAN REPRESENTS THAT PHYSICIAN
UNDERSTANDS THE FULL EXTENT AND IMPLICATION OF THE
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TERMS OF SECTIONS 3.A, 10, AND 11, AND HEREBY KNOWINGLY
AND VOLUNTARILY AGREES TO BE BOUND THEREBY.
(Emphasis in original.)
{¶10} In July 2019, Castillo-Sang informed TCHCVA that he intended to look for other employment. He spoke to individual TCHCVA board members, whom he
claims assured him that the board would not enforce the noncompetition restrictions
in his employment agreement. In August 2019, Dr. Castillo-Sang asked the TCHCVA
board to waive the restrictive covenants contained in the agreement, but the board
refused.
{¶11} On December 2, 2019, Castillo-Sang resigned his employment with TCHCVA and accepted an offer of employment from St. Elizabeth Hospital in
Edgewood, Kentucky, which is within the agreement’s Restricted Area.
The Lawsuit
{¶12} Prior to accepting his position with St. Elizabeth Hospital, Castillo- Sang filed this action against TCHCVA in the Hamilton County Common Pleas Court
in November 2019, seeking, among other things,1 a declaratory judgment that the
noncompetition restrictions in his employment agreement were illegal, invalid, and
unenforceable. In the alternative, Castillo-Sang sought a declaratory judgment that
the “Restricted Area” contained in the covenant not to compete be limited to
Hamilton County and/or Hamilton, Butler, Warren, and Clermont counties in Ohio.
Castillo-Sang also requested a temporary restraining order (“TRO”), preliminary
injunction, and permanent injunction prohibiting TCHCVA from enforcing the
noncompetition restrictions against him.
1 Castillo-Sang also asserted claims for promissory estoppel and unlawful discriminatory practices, alleging that he sought local employment in reliance on promises that TCHCVA would not seek to enforce his covenant not to compete and that TCHCVA enforced the restrictive covenants against him and other Hispanic physicians, while waiving and releasing four Caucasian physicians from the same restrictions. These claims remain pending and are not part of this appeal.
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{¶13} TCHCVA filed an answer and a counterclaim seeking a declaratory judgment that the restrictions and covenant not to compete contained in Castillo-
Sang’s employment agreement were reasonable as a matter of law, nonviolative of
public policy, and enforceable against Castillo-Sang.
{¶14} In December 2019, Castillo-Sang filed a motion for a TRO and preliminary injunction seeking the same injunctive relief that he sought in his
complaint.
{¶15} Following a two-day hearing, the trial court granted Castillo-Sang’s motion for a TRO and request for preliminary injunction. The trial court found that
there was a substantial likelihood that Castillo-Sang would be successful on the
merits of his claims because the noncompetition restriction was greater than
required to protect TCHCVA and posed an undue hardship on Castillo-Sang. The
court also found that Castillo-Sang would suffer irreparable harm if the injunction
was not granted, that no third parties would be unjustifiably harmed if the injunction
was granted, and that the public interest would be served by the injunction. This
appeal followed.
Preliminary Injunction
{¶16} In a single assignment of error, TCHCVA argues that the trial court erred by granting Castillo-Sang’s motion for a preliminary injunction. A party
requesting a preliminary injunction must show by clear and convincing evidence that
(1) there is a substantial likelihood that she/he will prevail on the merits, (2) she/he
will suffer irreparable injury if the injunction is not granted, (3) no third parties will
be unjustifiably harmed if the injunction is granted, and (4) the public interest will
be served by the injunction. Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d
260, 267-268, 747 N.E.2d 268 (1st Dist.2000). In determining whether to grant or
deny injunctive relief, a court must balance all four factors, and no single factor is
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dispositive. Brookville Equip. Corp. v. Cincinnati, 1st Dist. Hamilton No. C-120434,
2012-Ohio-3648, ¶ 11. Whether to grant or deny an injunction is within the
discretion of the trial court, and a reviewing court will not disturb the judgment of
the trial court absent an abuse of discretion. Banker’s Choice, LLC v. Zoning Bd. of
Appeals of City of Cincinnati, 2018-Ohio-3030, 106 N.E.3d 1271, ¶ 18 (1st Dist.);
Garano v. State, 37 Ohio St.3d 171, 173, 524 N.E.2d 496 (1988).
1. Likelihood of Success on the Merits
{¶17} With respect to the first element of injunctive relief—the likelihood of success on the merits—TCHCVA argues that Castillo-Sang failed to establish that he
is likely to prevail on the merits of his claims to invalidate the covenant not to
compete.
{¶18} In Raimonde v. Van Vlerah, 42 Ohio St.2d 21, 325 N.E.2d 544 (1975), the Supreme Court of Ohio held that a noncompetition agreement is reasonable “if
the restraint is no greater than is required for the protection of the employer, does
not impose undue hardship on the employee, and is not injurious to the public.”
Raimonde, at paragraph two of the syllabus. Among the factors to be considered in
determining whether a particular noncompetition agreement is reasonable are: (1)
whether the agreement contains time and space limitations; (2) whether the
employee is the sole contact with the customer; (3) whether the employee has
confidential information or trade secrets; (4) whether the covenant seeks to limit
only unfair competition or is designed more broadly to eliminate ordinary
competition; (5) whether the agreement seeks to stifle the employee’s inherent skill
and experience; (6) whether the benefit to the employer is disproportional to the
detriment to the employee; (7) whether the agreement bars the employee’s sole
means of support; (8) whether the skills that the agreement seeks to restrain were
7 OHIO FIRST DISTRICT COURT OF APPEALS
actually developed during the employment; and (9) whether the forbidden
employment is merely incidental to the main employment. Id. at 25.
{¶19} Restrictive covenants are disfavored in the law, and “[t]his measure of disfavor is especially acute concerning restrictive covenants among physicians, which
affect the public interest to a much greater degree.” Ohio Urology, Inc. v. Poll, 72
Ohio App.3d 446, 452-453, 594 N.E.2d 1027 (10th Dist.1991). Noncompetition
agreements must be strictly construed in favor of professional mobility and access to
medical care and facilities. Riverhills Healthcare, Inc. v. Guo, 1st Dist. Hamilton No.
C-100781, 2011-Ohio-4359, ¶ 23. “[C]ourts have recognized that the greater scrutiny
is mandated by public-policy considerations, since limiting the ability of a physician
to practice may affect the public’s ability to obtain medical care.” Sammarco v.
Anthem Ins. Cos., 131 Ohio App.3d 544, 551, 723 N.E.2d 128 (1st Dist.1998),
overruled on other grounds, Littlejohn v. Parrish, 163 Ohio App.3d 456, 2005-Ohio-
4850, 839 N.E.2d 49. But even though not favored, covenants not to compete in the
medical profession are not per se unenforceable, and will be upheld if they are
reasonable. Ohio Urology, Inc. at 451-452; Owusu v. Hope Cancer Ctr. of Northwest
Ohio, Inc., 3d Dist. Allen No. 1-10-81, 2011-Ohio-4466, ¶ 23; Premier Assoc., Ltd. v.
Loper, 149 Ohio App.3d 660, 2002-Ohio-5538, 778 N.E.2d 630, ¶ 20. And, courts
will enforce covenants against physicians to the extent necessary to protect an
employer’s legitimate interests; if there is no legitimate interest to be protected, the
noncompete is unreasonable. General Medicine, P.C. v. Manolache, 8th Dist.
Cuyahoga No. 88809, 2007-Ohio-4169. ¶ 7.
{¶20} Here, in determining whether the noncompetition agreement between Castillo-Sang and TCHCVA was reasonable, the trial court considered the factors set
forth in Raimonde and found: that Castillo-Sang is not the sole contact with a
patient; that he possessed neither confidential information nor trade secrets; that no
credible evidence suggested that unfair competition would result from Castillo-
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Sang’s hiring by St. Elizabeth and that the agreement merely seeks to eliminate
ordinary competition; that the agreement seeks to stifle Castillo-Sang’s inherent
surgical skill and experience; that the benefit to TCHCVA is disproportional to the
detriment to Castillo-Sang if the covenant were enforced; that Castillo-Sang was
trained in minimally invasive heart surgery before joining TCHCVA; and that, while
he “has honed his craft during his time at TCHCVA, there was no evidence that
TCHCVA invested in his training or development.”
{¶21} After considering the reasonableness factors, the trial court concluded that the noncompetition agreement was unreasonable because it failed on both the
first and second requirements of the Raimonde test; specifically, the court found that
the agreement’s restriction was greater than required to protect TCHCVA and that it
posed an undue hardship on Castillo-Sang. Although the trial court did not
specifically mention the third requirement of the Raimonde test—whether
enforcement of the covenant would be injurious to the public—this finding was
implicit in the court’s statement that Castillo-Sang is one of the very few surgeons in
the country capable of performing this minimally invasive heart surgery and that the
public would be served by the granting of the preliminary injunction, thus allowing
access to this procedure. The court concluded, therefore, that there was a substantial
likelihood that Castillo-Sang would be successful on the merits of his action for
declaratory and injunctive relief to invalidate the restrictive covenant.
{¶22} We analyze each of the three Raimonde requirements to determine whether the trial court abused its discretion in holding that the covenant not to
compete was unenforceable.
A. No Greater Than Required for Protection of Employer’s Legitimate Interests
{¶23} Under Raimonde, restrictive covenants are enforceable only to the extent necessary to protect an employer’s legitimate business interests. Raimonde,
9 OHIO FIRST DISTRICT COURT OF APPEALS
42 Ohio St.2d 21, 325 N.E.2d 544, at paragraph one of the syllabus; Ohio Urology
Inc., 72 Ohio App.3d at 452, 594 N.E.2d 1027. “The purpose in allowing non-
competition agreements is to foster commercial ethics and to protect the employer’s
legitimate interests by preventing unfair competition—not ordinary competition.”
Premier Assoc., Ltd., 149 Ohio App.3d 660, 2002-Ohio-5538, 778 N.E.2d 630, at ¶
20. The prevention of ordinary competition is not a legitimate business interest that
can be protected by a restrictive covenant. Busch v. Premier Integrated Med. Assoc.,
Ltd., 2d Dist. Montgomery No. 19364, 2003-Ohio-4709, ¶ 27. Therefore, a covenant
not to compete is “valid only when the competition [it] restrict[s] is somehow
unfair.” Id. at ¶ 17.
{¶24} We begin our analysis by reviewing the agreement entered into by Castillo-Sang. In his employment agreement, he specifically acknowledged that the
covenant not to compete, as well as the other restrictions, were reasonable and
necessary to protect TCHCVA’s business, trade secrets, and confidential information
such as business plans, acquisition plans, new personnel plans and pricing. Thus, in
arguing now that these restrictions were unreasonable, Castillo-Sang was required to
present clear and convincing evidence to the trial court that these restrictions were in
fact unreasonable.
{¶25} The agreement also recognizes that a court might find some or all of the restrictions to be unreasonable. In such a case, the parties agree that the court
should reform the agreement to limits it finds reasonable. The trial court in this case
found that the covenant not to compete was broader than required and enjoined
TCHCVA from enforcing it. The trial court did not reform the restrictions as to time
or geographical limits, presumably concluding that no restriction was reasonable.
And, while the agreement also provides that the parties agree that the covenant not
to compete is legally enforceable and shall not be challenged in court, neither party is
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arguing on appeal that this provision prevented the trial court from determining the
reasonableness and enforceability of the restrictive covenant.
{¶26} Ohio courts have found legitimate protectable interests in upholding physician covenants not to compete. In Owusu v. Hope Cancer Ctr. of Northwest
Ohio, Inc., 3d Dist. Allen No. 1-10-81, 2011-Ohio-4466, the court upheld a physician’s
two-year covenant not to compete, finding that the medical center had a legitimate
business interest in prohibiting the physician from using physician referral
connections he developed as a result of employment with the medical center and that
he could not use these connections to build a new practice. See Riverhills
Healthcare, Inc. v. Guo, 1st Dist. Hamilton No. C-100781, 2011-Ohio-4359
(upholding a one-year, five-mile-radius covenant not to compete against a
neurologist).
{¶27} Conversely, Ohio courts have refused to enforce covenants not to compete against physicians where there is no legitimate business interest to protect.
In Pratt v. Grunenwald, 2d Dist. Montgomery No. 14160, 1994 WL 313050 (June 29,
1994), the court found that the covenant failed to meet the first prong of Raimonde.
It stated:
As applied to instances involving covenants among physicians, we find
that meeting the first prong of the Raimonde test requires the
employer to prove that some legitimate business interest of the
employer—trade secrets, customer lists, inside information, special
training, or some other circumstance that makes the employer
particularly vulnerable to competition from his former employee—
needs protecting, and the trial court must find that the restrictive
covenant restrains the employees only to the extent necessary to
pr0tect that legitimate business interest. Without the proof of
circumstances that threaten the employer with unfair competition, the
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physician employee cannot be constrained because the competition is
merely ordinary and its restraint would violate the long-standing
public policy against agreements in the restraint of trade.
Id. at *2.
{¶28} The court found no evidence that referrals to the physicians were made for any other reason than their personal reputations and that their expertise was
increased no more than would have been through experience as cardiologists in solo
practice. Id. at *3. Finally, the court stated:
That Kupper and Lecher will earn future referrals in their individual
practices from some of the same referral sources that they had during
their employment at CCI, or that Kupper and Lecher may see patients
whom they once treated while employed by CCI, is nothing more than
ordinary competition, which cannot be restrained because CCI did not
part with any trade secrets, customer lists, specialized training, or any
other benefits which allowed Kupper and Lecher to gain past or future
referrals to unfair advantage over Grunenwald or CCI. A holding to
the contrary would authorize a restrictive covenant, in restraint of
trade, for any professional employee who provides services to the
public. This would violate the public policy against agreements in
restraint of trade.
Id.; see Busch, 2d Dist. Montgomery No. 19364, 2003-Ohio-4709 (desire to maintain
larger size not sufficient justification for covenant not to compete); Premier Health
Care Servs., Inc. v. Schneiderman, 2d Dist. Montgomery No. 18795, 2001 WL
1658167 (Dec. 28, 2001) (legitimate business interest no longer existed).
{¶29} In this case, we must determine whether the trial court abused its discretion. Key to this determination is whether TCHCVA established it had
legitimate business interests to protect. In other words, did Castillo-Sang actually
12 OHIO FIRST DISTRICT COURT OF APPEALS
possess confidential or trade secret information which would allow him to compete
unfairly? This analysis focuses on the third and fourth factors Raimonde says a court
should consider.
{¶30} In its argument that the court erred when it found that the noncompetition agreement seeks to eliminate ordinary, not unfair, competition,
TCHCVA asserts that the court ignored evidence related to Castillo-Sang’s access to
its confidential information and, therefore, the potential for unfair competition.
TCHCVA contends that the confidential information that Castillo-Sang had access to
included its plans to grow its cardiovascular team, its pricing structure, and its
network of referring physicians.
{¶31} We note that TCHCVA has pointed to scant evidence in the record which would support its contention that Castillo-Sang possessed trade secret or other
protected confidential information. For example, if TCHCVA could establish that
Castillo-Sang knew of particular targeted doctors TCHCVA was recruiting, specific
specialty areas it was developing, marketing and business plans targeting particular
markets, or profitability analysis, it may be able to show that it would be unfair for
Castillo-Sang to use that information to compete with TCHCVA. But that is not what
the record establishes.
{¶32} In support of its arguments, TCHCVA points to evidence that it supported and invested in Castillo-Sang’s Mitral Valve surgery practice. However,
Eugene Chung, M.D., Chief of Cardiology at The Christ Hospital (“TCH”), testified
that the investments in facilities and staff that occurred during Castillo-Sang’s
employment benefitted all of its surgeons and cardiologists and that those
investments remained at TCH after Castillo-Sang left.
{¶33} Although TCHCVA asserts that Castillo-Sang had access to its confidential pricing structure, Chung testified that TCHCVA is paid a single surgery
fee for cardiac surgery and that the price is set by Medicare, Medicaid, or private
13 OHIO FIRST DISTRICT COURT OF APPEALS
insurance. When John Michael Smith, M.D., a cardiac surgeon with TCHCVA, was
asked whether it was “some sort of confidential information about what the surgery
costs,” Smith stated that he did not think it was.
{¶34} With respect to TCHCVA’s network of referring physicians, TCH chief business development officer, Victor J. DiPilla, testified that the vast majority, more
than 90 percent of the cardiac surgery patients of TCHCVA, come from referrals
from TCHCVA’s own cardiologists. In addition, he testified that the biggest
competitor for TCH is “TriHealth, UC, Mercy,” not St. Elizabeth. Chung agreed that
“in nearly all instances,” cardiac surgery patients have been referred by cardiologists,
and that after the surgeon performs surgery and oversees the patients’ immediate
recoveries, the patients return to their cardiologists for all further care and
treatment. Smith and Castillo-Sang both testified that, as cardiac surgeons, they
spent no time soliciting cardiac surgery patients or cardiologists to refer them cases.
{¶35} Despite the fact that the employment agreement stated that Castillo- Sang would “keep secret and retain in strictest confidence and shall not use”
TCHCVA’s confidential information, the record before us contains no facts
substantiating that Castillo-Sang actually possessed, let alone used, confidential
information. Because there is no evidence of Castillo-Sang’s possession or use of
TCHCVA’s confidential information, there is no evidence that Castillo-Sang unfairly
competed with TCHCVA when he went to work for St. Elizabeth Hospital.
{¶36} Finally, we note that Castillo-Sang has a duty not to use or disclose confidential or trade secret information. This duty exists separate and apart from
any covenant not to compete. TCHCVA does not claim that he used or disclosed any
such confidential or trade secret information.
14 OHIO FIRST DISTRICT COURT OF APPEALS
B. Undue Hardship on the Employee
{¶37} TCHCVA argues that the trial court erred when it found that the noncompetition agreement poses an undue hardship on Castillo-Sang. It argues that
Castillo-Sang voluntarily resigned and that he had an immediate offer for full-time
employment at Mt. Carmel Hospital in Columbus, Ohio, which was outside the range
of the geographic restriction.
{¶38} Castillo-Sang testified that his wife is a full-time urologic surgeon at a hospital in Cincinnati. They moved to Cincinnati from South Carolina when their
daughter was three years old and his wife was pregnant with their second daughter
so they could be closer to his wife’s family. Their daughters were aged seven and four
at the time of the hearing on the injunction. Castillo-Sang’s mother-in-law is the
children’s nanny.
{¶39} Castillo-Sang testified that he deals with life-threatening emergencies, “[w]here if you’re not in the operating room within an hour or two of the patient
presenting, the patient will die. So time is of the essence.” He testified that he did
not find any employment that would not require him to move away from his family.
The full-time position at Mt. Carmel would require that he find a place in Columbus
where he could stay when taking calls and then he would commute from Cincinnati
on the other days. However, he testified, “Most of the days I’m envisioning that I
would not be able to [commute home] given the caseload. You don’t operate on
somebody’s heart and check out at 3:00 p.m. and go home. You don’t do that.”
{¶40} As Smith acknowledged, cardiac surgeons do highly skilled and technical work in extremely stressful situations that can involve life and death, and
they work long hours, such that exhaustion is a legitimate concern that can impact
their patients. Chung testified, “Like all high stress, highly technical and skilled
procedures and operations, you want the operator to be as rested or as optimally
15 OHIO FIRST DISTRICT COURT OF APPEALS
ready to do it as possible.” Chung testified that the expectation is that a cardiac
surgeon who is on call should be able to respond within 30 minutes because time is
of the essence. Therefore, the trial court did not abuse its discretion in concluding
that the noncompetition agreement placed an undue hardship on Castillo-Sang and
therefore failed to meet the second Raimonde requirement.
C. Injurious to the Public
{¶41} TCHCVA argues that the noncompetition agreement is not injurious to the public because patients in the Greater Cincinnati area have a number of options
for cardiovascular healthcare only miles from St. Elizabeth. And it argues that the St.
Elizabeth cardiac surgeons who were there before Castillo-Sang’s recruitment would
continue to save lives using sternotomy. However, as Smith testified, St. Elizabeth
did not have a surgeon doing minimally invasive Mitral Valve surgeries, which is
much less invasive to a patient than a sternotomy. The surgery results in lower risks
for stroke, infection, and bleeding, and patients have less pain, shorter hospital stays,
and recover more quickly. Smith agreed that as long as the patient is a good
candidate, it is always better for the patient to have the minimally invasive surgery
instead of the sternotomy. As the trial court noted, Castillo-Sang is one of the few in
the country who can perform this surgery. Therefore, the trial court did not abuse
its discretion in finding that the noncompetition agreement did not meet the third
Raimonde requirement.
{¶42} Because the trial court did not abuse its discretion in finding that the noncompetition agreement was greater than necessary to protect a legitimate
interest of TCHCVA, imposed undue hardship on Castillo-Sang, and was injurious to
the public, the trial court’s conclusion that Castillo-Sang was likely to be successful
on the merits was supported by clear and convincing evidence.
16 OHIO FIRST DISTRICT COURT OF APPEALS
2. Irreparable Injury if Injunction Not Granted
{¶43} TCHCVA correctly argues that if a party’s loss can be compensated by money damages, he has not sustained irreparable harm, and therefore injunctive
relief is not appropriate.
{¶44} Castillo-Sang testified that he found no employment that would not require him to move away from his family. According to Castillo-Sang, Chung told
him he would not hold Castillo-Sang to the noncompetition agreement because he
had a young family and he would not want them to go through this. Chung
acknowledged this statement and said that he did not want Castillo-Sang to have to
displace his family from Cincinnati. And Smith testified that he previously worked at
Kettering Hospital near Dayton as a part-time surgeon while living in Cincinnati and
that he would have had to move there because a two-and-a-half-hour daily commute
would have made it hard for him to be readily available to take care of his patients.
He agreed that “that’s a real thing for surgeons to get burned out, or spend [too] little
time with their family.” Therefore, the trial court did not abuse its discretion in
finding that Castillo-Sang would be irreparably harmed if the injunction is not
granted.
3. No Third Parties will be Unjustifiably Harmed by Injunction
{¶45} TCHCVA does not identify any third party that would be harmed by the granting of the injunction.
4. Public Interest will be Served by Injunction
{¶46} TCHCVA argues that the public will not be served by the granting of the injunction. It contends that patients in the Greater Cincinnati area have options
for cardiovascular healthcare, including TCHCVA, only miles from St. Elizabeth, and
that, to the extent patients want to use St. Elizabeth, that hospital had a team of
cardiovascular surgeons “saving lives” before Castillo-Sang’s recruitment.
17 OHIO FIRST DISTRICT COURT OF APPEALS
{¶47} Castillo-Sang has the ability to perform minimally invasive heart surgery, a procedure with significant advantages and benefits over the traditional
sternotomy. This is not available through others at St. Elizabeth Hospital.
Therefore, the trial court did not abuse its discretion in finding that the public
interest will be served by the injunction.
Conclusion
{¶48} Consequently, we hold that the trial court did not abuse its discretion in granting the preliminary injunction in favor of Castillo-Sang. Therefore, we
overrule the assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
CROUSE and WINKLER, JJ., concur.
Please note: The court has recorded its own entry this date.