Neimes v. Ta

• Decision Date: 25 November 1998
• Docket Number: No. 04-97-00916-CV,04-97-00916-CV
• Citation: 985 S.W.2d 132
• Parties: Robert E. NEIMES, M.D., Garry Woo, M.D., Individually and in Their Official Capacities, Texas Center for Infectious Disease, San Antonio State Chest Hospital, and Texas Department of Health, Appellants v. Kien Chung TA & Stephen Fisher, Appellees
• Court: Texas Court of Appeals

Page 132

985 S.W.2d 132

Robert E. NEIMES, M.D., Garry Woo, M.D., Individually and in

Their Official Capacities, Texas Center for Infectious

Disease, San Antonio State Chest Hospital, and Texas

Department of Health, Appellants v. Kien Chung TA & Stephen Fisher, Appellees

No. 04-97-00916-CV.

Court of Appeals of Texas,

San Antonio.

Nov. 25, 1998.

Rehearing Overruled Jan. 11, 1999.

Laurie Rayson Eiserloh, Assistant Attorney General, Austin, for Appellant.

James C. Harrington, Peter Hofer, Austin, for Appellee.

Before CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice and KAREN ANGELINI, Justice.

KAREN ANGELINI, Justice.

Appellants, Robert E. Neimes, M.D., Garry Woo, Texas Center for Infectious Disease, San Antonio State Chest Hospital, and Texas Department of Health, appeal an order denying their motion for summary judgment on the issues of qualified and official immunity. We affirm in part and reverse in part the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to court orders, Kien Chung Ta and Stephen Fisher were both quarantined at the Center for Infectious Disease Control ¹ (the Center) in San Antonio, Texas. Ta and Fisher were quarantined because they had contagious forms of tuberculosis, but refused to take their tuberculosis medications. Dr. Robert E. Neimes was the supervisor of the Center during the time Ta and Fisher were quarantined, and Dr. Garry Woo was their treating physician.

During Ta's and Fisher's quarantine at the Center, the Center's policy was to confine all involuntary quarantine patients to solitary confinement in order to prevent the exposure of visitors and patients who had voluntarily come to the Center for treatment. This confinement meant the quarantined patients were completely restricted to their rooms, with the exception of two one-hour exercise breaks per day.

A. Kien Chung Ta

Before Ta was quarantined at the Center, the Texas Department of Health made numerous attempts to persuade Ta to take his tuberculosis medication. However, he consistently refused to cooperate and became extremely ill. He became uncontrollable when admitted into a Houston hospital and left against medical advice. Because he had become a threat to public health and to himself, a Houston court entered an order quarantining Ta to the Center in San Antonio ² until he was cured. Ta resided at the Center from August, 1992, to September, 1994.

Ta spoke English poorly, but was fluent in both Vietnamese and Chinese. The Center never provided Ta with an interpreter. Hospital staff felt Ta could speak enough English to make his needs known; however, both Dr. Neimes and Dr. Woo requested that Ta's family and members of the local Asian community visit with Ta and stress the need for him to take his medication. Nevertheless, Ta continued to refuse to take his medication while at the Center. Within a month of confinement, Ta began to exhibit signs of mental illness, such as dismantling his furniture and using it as a weapon, starting fires, and relieving himself on the floor. Out of concern for Ta's safety and the safety of hospital staff, the Center removed all of Ta's furniture except his mattress.

Because Ta would not take his medication, Dr. Woo requested at least two psychiatric consults. The psychiatrist recommended that Ta be prescribed Prolixin, an anti-psychotic drug. When Ta refused to be medicated, Dr.Woo administered the Prolixin by dissolving the drug into Ta's orange juice without Ta's knowledge. After several months of Prolixin therapy, Ta began to calm down and take his tuberculosis medication. However, after a year of taking Prolixin, Ta Because of the type of tuberculosis Ta was infected with, he required eighteen months of continuous treatment in order to ensure complete remission. Because he refused to consistently take his medication for the first seven months of his quarantine, Dr. Neimes and Dr. Woo felt that Ta needed to be treated for an additional year from the time the original court order expired. Ta was, therefore, detained at the hospital for four days between the expiration of his first commitment order and the issuance of his second commitment order. Neither Dr. Neimes nor Dr. Woo informed Ta that his commitment order had expired during those four days. Ta completed his treatment in September, 1994, and was released. Ta died January 2, 1998.

developed tardive dyskensia, a well-known side-effect of Prolixin that causes involuntary muscle spasms. Consequently, Dr.Woo discontinued the Prolixin, and Ta again refused to take his tuberculosis medication. His tuberculosis worsened, and following another psychiatric consult, the psychiatrist recommended that Ta be given a different anti-psychotic drug, Haldol.

B. Stephen Fisher

Fisher was diagnosed with tuberculosis in June of 1993. He had a history of alcoholism and acknowledged that he could not be depended on to take his tuberculosis medication. Accordingly, the Orange County Health and Welfare Center recommended that Fisher be quarantined until his tuberculosis was no longer a threat to himself or the public. Fisher voluntarily agreed to court-ordered quarantine, and was quarantined at the Center from July, 1993, to February, 1994.

When Fisher was admitted, Dr. Woo was aware of his history of alcoholism and depression. He arranged for Fisher to be seen by a licensed chemical dependency counselor throughout his stay at the Center. During the first few months of his quarantine, Fisher exhibited numerous behavioral problems. Noticing signs that Fisher was depressed, Dr. Woo requested a psychiatric consult in November, 1993. Based on the psychiatrist's recommendation, Fisher was treated for depression. Fisher was eventually cured of his tuberculosis and now lives in Orange, Texas.

C. The Lawsuit

Ta and Fisher sued appellants for negligence and false imprisonment, violations of their federal and state constitutional rights, and violations of the Texas Health and Safety Code. Ta also sued for battery. On October 24, 1997, the trial court granted, in part, and denied, in part, the defendants' motion for summary judgment. The Department of Health and the Center were granted summary judgment for violations of the Americans with Disabilities Act (ADA) and the Texas Constitution and for the intentional torts. The trial court granted Dr. Neimes and Dr. Woo summary judgment for violations under the ADA and the Rehabilitation Act as well as violations of the Texas Constitution. The trial court denied summary judgment on the issues of federal qualified immunity and state official immunity, and all other issues not specifically granted. This appeal is based on the denial of summary judgment on the issues of qualified and official immunity. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(5) (Vernon Supp.1998) (authorizing appeal from interlocutory order denying motion for summary judgment based on assertion of immunity).

ARGUMENT AND AUTHORITY

A. Summary Judgment Response

Contrary to Ta's and Fisher's assertion, "the factual allegations in [their] petition and pleadings are" not "sufficiently detailed and specific ... to withstand any claim of immunity by [a]ppellants, even if [we] were not to consider [their] response or supporting expert affidavit...." This is necessarily true because the factual allegations in pleadings are not summary judgment evidence, regardless of their level of detail, even if they are verified. See Laidlaw Waste Systems (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.1995). Consequently, in reviewing the trial court's order, we must determine what summary judgment evidence was before the trial court. Therefore we begin our analysis with the appellants' third A response to a motion for summary judgment, including opposing summary judgment evidence, may be filed no later than the seventh day before the date of the hearing "[e]xcept on leave of court." TEX.R. CIV. P. 166a(c); see Sosa v. Central Power & Light, 909 S.W.2d 893, 895 (Tex.1995) (noting because TEX.R. CIV. P. 4 applies to all time periods in the Texas Rules of Civil Procedure, the date a pleading is filed is excluded, and the date of the hearing is included as the seventh day). Thus, Rule 166a(c) "specifically places the burden on the [respondent] to obtain leave of court to file a late response." TIMOTHY PATTON, SUMMARY JUDGMENTS IN TEXAS § 2.02 (Michie 1996).

issue, in which they contend Ta's and Fisher's response is a nullity because it was filed late without the trial court's permission.

Permission to file a response late may be reflected in "a separate order," "a recital in the summary judgment," or an oral ruling contained in the reporter's record of the summary judgment hearing. Id. In any event, the record must contain "an affirmative indication ... that the trial court permitted the late filing of the response;" otherwise, as "Texas courts have repeatedly confirmed," the "response is a nullity." Id. Accordingly, if the record contains nothing indicating the trial court considered a late-filed response, we must presume the trial court did not consider it and we must do likewise. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996); Goswami v. Metropolitan Sav. and Loan Ass'n, 751 S.W.2d 487, 491 (Tex.1988); INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex.1985).

Ta and Fisher concede that they did not file their response by the seventh day before the date of the summary judgment hearing. They also concede that the record does not contain a written order indicating the trial court granted them permission to file their response late. Nor is permission reflected in the trial court's summary judgment order, which states that the trial court considered "the motion and attached summary judgment evidence," or in the reporter's record of the summary judgment hearing, which we attempted to obtain but were told is unavailable. We must, therefore, presume the trial court did not consider Ta's and Fisher's...