Hermann Hosp. v. Thu Nga Thi Tran, C14-86-711-CV

• Decision Date: 02 April 1987
• Docket Number: No. C14-86-711-CV,C14-86-711-CV
• Citation: 730 S.W.2d 56
• Parties: HERMANN HOSPITAL, Appellant, v. THU NGA THI TRAN, Individually, and on Behalf of Ho Trinh, An Incompetent Person, and on Behalf of Nhan Quang Trinh, Vinh Quang Trinh, Tri Quang Trinh and Phuong Uyen Tran Trinh, Minors, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 56

730 S.W.2d 56

HERMANN HOSPITAL, Appellant, v. THU NGA THI TRAN, Individually, and on Behalf of Ho Trinh,

An Incompetent Person, and on Behalf of Nhan Quang

Trinh, Vinh Quang Trinh, Tri Quang Trinh

and Phuong Uyen Tran Trinh,

Minors, Appellees.

No. C14-86-711-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

April 2, 1987.

Carl L. Ray, Houston, for appellant.

Claude M. McQuarrie, III, Robert J. Swift, Houston, for appellees.

Before JUNELL, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

This is an appeal from orders granting a temporary restraining order and temporary injunction in which appellant (defendant below) was enjoined from destroying or altering its hospital records pertaining to the treatment of appellee Ho Trinh (plaintiff below) and making any notes or entries in the record without indicating the date on which the notation or entry was made. We hold the trial court abused its discretion in granting the temporary injunction.

On August 4, 1986, appellees filed suit against appellant and others alleging negligence in the treatment of appellee Ho Trinh. In their petition appellees sought a temporary restraining order (TRO) and temporary injunction to enjoin appellant from: (1) destroying or altering appellant's medical records relating to the care of Mr. Trinh; (2) making any notes or entries in the records without indicating the date of the note or entry; (3) requesting or attempting to obtain consent to discharge Mr. Trinh from the hospital; and (4) discharging Mr. Trinh from the hospital or transferring him to a lesser-equipped health care facility.

The case originally was assigned to the 152nd District Court but was transferred to the 295th District Court, which was hearing the ancillary docket including those cases requesting injunctive relief. On August 4, 1986, the trial court granted appellees' request for the TRO and set a hearing date for the temporary injunction on August 13, 1986. At this hearing, the court dissolved the TRO as to two doctors named in the suit, denied appellees' requests for injunctive relief regarding the transfer of Mr. Trinh to another facility, and granted a temporary injunction concerning the medical records. This order was signed August 18, 1986. Appellant appeals both orders granting the TRO and temporary injunction.

We first note that the TRO expired by its own terms without further extension. See Tex.R.Civ.P. 680. Consequently, all issues relating to the TRO are moot. United Interests, Inc. v. Sabel's T.V. Service, Inc., 698 S.W.2d 170, 172 (Tex.App.--Houston [14th Dist.] 1985, no writ).

In point of error four appellant contends the ancillary court erred in granting the temporary injunction because there was factually insufficient evidence to support a finding that appellant intended to engage in the activities sought to be restrained.

The court below made Findings of Fact and Conclusions of Law but denied appellant's request to make a finding on whether appellant intended to do the things sought to be enjoined. Appellant contends that without a finding of intent, appellees have not been threatened with irreparable injury, an element appellees must prove before obtaining injunctive relief. Frey v. DeCordova Bend Estates Owners Association, 647 S.W.2d 246, 248 (Tex.1983). Appellees argue, however, that if the evidence supports a finding of intent, the finding will be implied in the judgment, citing Erickson v. Rocco, 433 S.W.2d 746, 750 (Tex.Civ.App.--Houston [14th Dist.] 1968, writ ref'd n.r.e.).

The evidence heard by the court at the hearing on the temporary injunction consisted of testimony given by three people. Pamela Yokubaitif, director of medical records at Hermann Hospital, testified that normally the original records are microfilmed, then destroyed, two years after the patient is discharged. She further testified that these particular records have been and will continue to be kept under lock and key, with very few people having access to them and no one having access without her permission, until any pending litigation is over. She also testified that she knew of no one having the intent to destroy or alter the records, that it would be a violation of Hermann Hospital policy to do so and that it is her duty to prevent this from happening. She testified that it is standard procedure for physicians to sign and date all entries in the record wherever the records are located, that it would be a violation of hospital policy not to do this, and she knew of no one intending to make notations or entries without following this procedure.

Carl Ray, counsel for appellees, testified that the original records are crucial to the trial because they contain original pen markings and are color-coded, which the authenticated copies tendered by appellant do not show. He further testified that no one had indicated that the records would be altered or destroyed, and that no one had the intent to do so as far as he knew, but from testimony regarding normal procedures there was such a possibility.

Finally, Mrs. Tran testified that she believed the hospital wanted to transfer Mr. Tran to a nursing home.

Fear or apprehension of the possibility of injury alone is not a basis for injunctive relief. Frey v. DeCordova, 647 S.W.2d at 248. Since the evidence shows no intention on the part of appellant to do the...