
    J. STERNBERG, S. SCHULMAN AND ASSOCIATES, M.D., P.A., a Florida Professional Association, James H. Sternberg, M.D., Stephen A. Schulman, M.D., Jeffrey A. Kugel, M.D., Ashley Kaye, M.D., Alan F. Alarcon, M.D., Ric-cardo M. De Girolami, M.D., and Claudio Smuclovisky, M.D., Appellants, v. HOSPITAL CORPORATION OF AMERICA, a Foreign Corporation, HCA Health Services of Florida, Inc., a Florida Corporation, d/b/a HCA Northwest Regional Hospital, Leonard Weisinger, Gary Garrison, Samuel Goldsmith, Morris Cohen, M.D., Leonard Vinueza, M.D., Samuel Manin, D.O., Warren Callaway, Marge Roach, Gerald Schmidt, M.D., and Radiological Imaging Specialist, Inc., a Florida Corporation, Appellees.
    No. 88-0894.
    District Court of Appeal of Florida, Fourth District.
    June 21, 1989.
    On Denial of Rehearing Sept. 12, 1990.
    Charles C. Powers and Michael S. Smith of Charles C. Powers, P.A., West Palm Beach, for appellants.
    Rex Conrad and Susan L. Dolin of Conrad, Scherer & James, Fort Lauderdale, for appellees-Hospital Corporation of America, HCA Health Services of Florida, Inc., d/b/a HCA Northwest Regional Hosp., and Warren Callaway.
    Henry Latimer of Fine, Jacobson, Schwartz, Nash, Block & England, Fort Lauderdale, and Vedder, Price, Kaufman & Kammholz, Chicago, Illinois, for Amicus Curiae-American College of Radiology on behalf of appellants.
    William A. Bell, Tallahassee, for Amicus Curiae-The Florida Hosp. Ass’n on behalf of appellees.
   POLEN, Judge.

This is a timely appeal from the trial court’s non-final order of March 10, 1988, denying appellants’ motion for temporary injunction. The injunctive relief sought was to preclude appellees, the hospital, from restricting appellants’ radiologist group from performing medical services at the hospital.

The hospital board, desiring to put an end to apparent squabbling among appellants and competing radiologists over the right to perform emergency room service, decided to restrict the radiologist services to that provided by one group only. The hospital proposed appellants and other interested radiologist services/doctors submit competitive service contract bids.

Appellants chose not to submit a bid, and the service contract was awarded to another radiologist group. The hospital terminated appellants’ services; however, the termination was not deemed to be based on “fault.”

We find no error in the trial court’s denial of a temporary injunction by which appellants were seeking to be reinstated as authorized radiologists at the hospital, and to “preserve the status quo” pending a final hearing.

Appellants further complain the trial court erred by not requiring appellee hospital to conduct a hearing regarding termination of appellants’ services in accordance with the hospital’s own bylaws. Article VIII of those bylaws, relied on by appellants, provides:

HEARING AND APPELLATE REVIEW PROCEDURE
Section 1. Right to Hearing and to Appellate Review
a. When any practitioner receives notice of a recommendation of the Executive Committee that, if ratified by decision of the governing body, will adversely affect his appointment to or status as a member of the Medical Staff or his exercise of clinical privileges,, he shall be entitled to a hearing before an ad hoc committee of the Medical Staff. If the recommendation of the Executive Committee following such hearing is still adverse, the affected practitioner shall then be entitled to an appellate review by the governing body before the governing body makes a final decision on the matter.
b. When any practitioner receives notice of a decision by the governing body that will affect his appointment to or status as a member of the Medical Staff or his exercise of clinical privileges, and such decision is not based on a prior adverse recommendation by the Executive Committee of the Medical Staff with respect to which he was entitled to a hearing and appellate review, he shall be entitled to a hearing by a committee of the Medical Staff appointed by the governing body, and if such hearing does not result in a favorable recommendation, to an appellate review by the governing body, before the governing body makes a final decision on the matter.

In denying appellants’ request for temporary injunctive relief, the trial court may have determined that by appellants’ declining to enter the competitive bid process, they had waived their rights, if any, to an article VIII hearing.

In any event, we find no abuse of discretion by the trial court’s denial of a temporary injunction. The order is affirmed, and the cause may proceed to a final resolution on the merits.

HERSEY, C.J., and ANSTEAD, J., concur.

ON REHEARING

PER CURIAM.

We deny rehearing and adhere to our original decision affirming the trial court’s denial of a temporary injunction to reinstate appellants’ staff privileges. On the record the trial court was entitled to conclude that the basic issue was whether the hospital could exclude appellants from its staff under its new policy of contracting for one exclusive group to perform radiological services. That issue will be decided at a final hearing on the merits. Pending that hearing we believe that the trial court was authorized to deny temporary injunc-tive relief, including the denial of a hearing which the hospital claims is not required in view of its policy decision to award an exclusive contract for radiological services. See Redding v. St. Francis Medical Center, 255 Cal.Rptr. 806, 208 Cal.App.3d 98 (1989).

REHEARING DENIED.

HERSEY, C.J., and ANSTEAD, J., concur.

POLEN, J., dissents with opinion.

POLEN, Judge,

dissenting.

I respectfully dissent.

In our original opinion dated June 21, 1989, 14 FLW 1501, we affirmed the judgment of the trial court denying injunctive relief to appellants’ radiologist group which had sought an order reinstating their authority to perform radiological services at appellee hospital, and to require appellee hospital to afford them a hearing prior to termination of staff privileges. The dispute was occasioned by appellees’ decision to change the manner in which they provided radiological services to their patients. Prior to the eomplained-of change, a number of competing radiologist groups had staff privileges at appellee hospital. Apparently there had been dissension amongst the competing radiologists as to the manner in which treatment of emergency room patients was allocated. Appellee hospital undertook to solicit competitive bids from the various radiologist groups interested and award staff privileges only to the successful bidder, to the exclusion of all competing groups.

I would grant rehearing in part, in accordance with the following. I am still of the view, along with the majority, that the trial court did not abuse its discretion in denying that portion of the injunctive relief whereby appellants sought a mandatory injunction to have their staff privileges reinstated pending the outcome of the litigation.

However, I believe that our June 21, 1989, opinion may have been in conflict with earlier decisions of this court, insofar as we determined the trial court did not err in denying a mandatory injunction to afford appellants a hearing before the appel-lee hospital’s executive committee or governing body.

Appellants had complained the trial court erred by not requiring appellee hospital to conduct a hearing regarding termination of appellants’ services in accordance with the hospital’s own bylaws. Article VIII of those bylaws, relied on by appellants, provides:

HEARING AND APPELLATE REVIEW PROCEDURE
Section 1. Right to Hearing and to Appellate Review
a. When any practitioner receives notice of a recommendation of the Executive Committee that, if ratified by decision of the governing body, will adversely affect his appointment to or status as a member of the Medical Staff or his exercise of clinical privileges, he shall be entitled to a hearing before an ad hoc committee of the Medical Staff. If the recommendation of the Executive Committee following such hearing is still adverse, the affected practitioner shall then be entitled to an appellate review by the governing body before the governing body makes a final decision on the matter.
b. When any practitioner receives notice of a decision by the governing body that will affect his appointment to or status as a member of the Medical Staff or his exercise of clinical privileges, and such decision is not based on a prior adverse recommendation by the Executive Committee of the Medical Staff with respect to which he was entitled to a hearing and appellate review, he shall be entitled to a hearing by a committee of the Medical Staff appointed by the governing body, and if such hearing does not result in a favorable- recommendation, to an appellate review by the governing body, before the governing body makes a final decision on the matter.

Our prior opinion speculated that the trial court may have determined appellants waived their right to such a hearing by failing to participate in the competitive bid process. Both appellants and appellees agree that this was neither argued in the trial court nor relied upon by the trial judge in denying the injunctive relief sought.

Appellants argue that our determination should be guided by our prior decision in Palm Beach-Martin County Medical Center, Inc. v. Panaro, 431 So.2d 1023 (Fla. 4th DCA 1983), as cited with approval in Hospital Corporation of Lake Worth v. Romaguera, 511 So.2d 559 (Fla. 4th DCA 1986). I agree. I interpret Panaro as standing for the proposition that a hospital’s bylaws, as they pertain to the rights of staff physicians, constitute part of the contractual relationship between the hospital and the physician, so long as they are not unilaterally amended to reduce the rights of the physician. In this case, the clear language of the above cited bylaw provision indicates that appellants were entitled to a hearing, either before the governing body or the executive committee, before their staff privileges could be terminated. Appellees having failed to provide such a hearing, I would hold that the trial court erred in declining to grant appellants a mandatory injunction, requiring appellee hospital to afford such a hearing.

This is not to say that appellee hospital is prohibited from changing the manner in which they do business or more particularly, the method by which they determine what physicians will have staff privileges, or be allocated emergency room patients. Indeed, we have in at least one other case affirmed the propriety of such an action. Horgan v. South Broward Hospital District, 477 So.2d 617 (Fla. 4th DCA 1985). Appellees have provided in their response to motion for rehearing, decisions from other states, notably California and Pennsylvania, which not only support, but appear to encourage such changes by hospital where the intent is presumably to benefit patient treatment. However, I am of the view that appellants were clearly entitled to a hearing, notwithstanding appellees’ determination to change the manner of allocating radiological services to a competitive bid situation, and it was error for the trial court to deny appellants that relief.

Accordingly, I would reverse and remand for further proceedings consistent with this opinion.  