PLAINTIFFS' ORIGINAL PETITION FOR INJUNCTIVE RELIEF August 29, 2024 (2024)

On August 29, 2024 aComplaint,Petitionwas filedinvolving a dispute betweenPersse, Davis,andPlatinum Heights Llc,The Heights Hospital,for OTHER CIVILin the District Court of Harris County.

 
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 8/29/2024 12:37 PM Marilyn Burgess - District Clerk Harris County Envelope No. 91471403 2024-57797 / Court: 333 By: Patricia Jones Filed: 8/29/2024 12:37 PM CAUSE NO. DR. DAVID PERSSE, IN HIS IN THE DISTRICT COURT OFFICIAL CAPACITY AS STATUTORY HEALTH AUTHORITY AND THE CITY OF HOUSTON Plaintiff, JUDICIAL DISTRICT PLATINUM HEIGHTS LLC A/K/A THE HEIGHTS HOSPITAL Defendants. HARRIS COUNTY, TEXAS PLAINTIFFS’ ORIGINAL PETITION FOR INJUNCTIVE RELIEF Plaintiffs, Dr. David Porsse, in bis Official Capacity as Statutory Health Authority andthe City of Houston (jointly, the “Ciry Plaintiffs”), fle their Original Petition for injunctiveRelief as follows: i, DISCOVERY1 The City Plaintiffs intend to conduct discovery under Level 1 of the Texas Rules of CivilProcedure (“TRCP”) Rule 190.4. II. PARTIES AND SERVICE2 Dr. David Persse is the Statutory Health Authority for the City of Houston, Texas, and isauthorized under Section 81.081 ef seg. of the Texas Health and Safety Code to bring this cause ofaction for injunctive relief.23 The City of Houston is a Texas home rule municipal corporation, with its principal officelocated in Houston, Harris County, Texas. The City is duly authorized under Section 81.081 ef seg.of the Texas Health and Safety Code to bring this cause of action for injunctive relief. 14 Defendant Platinum Heights, LLC d/b/a The Heights Hospital (Heights Hospital”) is alimited liability corporation residing in Harris County, Texas, and may be served with processthrough its registered agent for service of process, Quadros Migi & Crosby PLLC, located at 712Main Street, Suite 1100, Houston, TX 77002. HE JURISDICTION AND VENUE5 This Court has jurisdiction pursuant to Section 81.084 of the Texas Health and Safety CodeVenue is proper in this Court pursuant to Section 81.084 of the Texas Health and Safety Codebecause the property at issue in this lawsuit is located in Harris County, Texas.6. The damages sought are within the jurisdictional limits of this Court. Ti. INTRODUCTION7 This lawsuit concerns Defendant the Heights Hospital’s failure to complete mandatory testingfor Legionella bacteria following a 2022 outbreak of Legionnaires’ Disease traced to Defendant’spremises that resulted in at least one fatality. The Heights Hospital has been lawfully ordered tocomplete a testing protocol by order dated May 5, 2023, “Order of Control Measures to Property,”issued by the Houston Health Authority. The Heights Hospital initially complied with the protocolbut abruptly quit June 2024. To protect the health and safety of the public, the City Plaintiffs requestthat this court grant injunctive relief to compel Defendant to complete its testing protocol. IV. FACTS8 Plaintiff Dr. David Persse is the appointed Health Authority for the City of Houston underChapter 121 of the Local Public Health Reorganization Act. As the Health Authority, Dr. Persse isauthorized to, “by written order may require the person who owns or controls the property to imposecontrol measures that are technically feasible to disinfect or decontaminate the property if the propertyis found to be infected or contaminated.” TEX. HEALTH AND SAFETY CODE § 81.084(c).9 On or about November 1, 2022, the Texas Department of Health State Services (“TDHSS”) 2advised the City Plaintiffs that a patient testing positive for Legionella had received health care ervices at Defendant Heights Hospital10. Per the U.S. Centers for Disease Control, Legionnaires’ Disease is a very serious type ofpneumonia caused by bacteria called Legionella. Symptoms include cough, shortness of breath,muscle aches, headache and fever. It is usually spread through water droplets in the air. Although itcan be treated by antibiotics, approximately one in ten persons who get Legionnaires’ Disease willdie from the infection.11 In December 2022, the City Plaintiffs provided recommendations and proposed testingschedules to Defendant Heights Hospital for Legionella bacteria. Heights Hospital agreed to conductwater sample testing and report the results to the City Plaintiffs. Testing in January was positive inthree water samples collected on the fourth floor of the Heights Hospital12 Following positive test results, TDHSS requested additional testing prior to beginning achlorination process to treat Legionella. Pre-chlorination water sampling in March 2023 showed tenof eleven samples tested positive for Legionella.13 Personnel at the Heights Hospital were initially reluctant to cooperate with the Legionellatesting protocol but eventually agreed to proceed. However, it was repeatedly late in conductingtesting, missed testing dates and missed deadlines to provide specified items to the City Plaintiffs aspart of the Legionella testing and abatement process.14 In April 2023, ten of sixteen test samples were positive for Legionella.15. Testing protocols for Legionella outbreaks are promulgated by the TDSHH in its “Emergingand Acute Infectious Disease Guidelines” (“‘EAIDG”). The purpose of the EADIG “is to provideTexas’ local and regional health departments a centralized resource for surveillance activities, andoutbreak and reportable disease investigations.” The City Plaintiffs ordered Heights Hospital toconduct Legionella testing in accordance with the EADIG guidelines, which requires, inter alia, a 3minimum six-month long testing protocol. Further, should a test come back positive for Legionella,the six-month period restarts; the protocol ends upon six months of negative tests.15. On May 5, Dr. Persse issued an “Order of Control Measures to Property” to Heights Hospitalpursuant to Section 81.084(c) od the Texas Health and Safety Code (“Control Order”). A true andcorrect copy of the Control Order is attached hereto as Exhibit A. The Control Order is a mandatory,lawful order from the statutory Health Authority requiring, “the person who owns or controls theproperty to impose control measures that are technically feasible to disinfect or decontaminate theproperty if the property is found to be infected or contaminated.” Failure to comply with a controlorder issued pursuant to Section 81.084 is a criminal offense. TEX. HEALTH AND SAFETY CODE §81.087.16. The Control Order was sent to Hilda Long-Gilmore, the Chief Qualify and ComplianceOfficer at Heights Hospital and Justin Joy, CEO of PAM Health Rehabilitation. Both entitiesacknowledged receipt of the Control Order.17. The Control Order acknowledged the Heights Hospital has made certain mitigation efforts butnoted, “water samples . . . continue to test positive for this bacterium . . . [t]his poses a continuingthreat to the health and safety of not only patients at your facility, but also poses a threat to the publicin general that requires your immediate attention.” Ex. A.19. The Control Order required the Heights Hospital to take specified remedial measures to abatethe Legionella threat, including, among other things providing its: Current revised water sampling plan for Legionella water testing. Jf at any time during the six-month testing period Legionella is detected in your hospital’s water. You are expected to provide the revised water sampling plan to the Houston Health Department. Please refer to the Department of State Health Services Guidance that the Houston Health Department has shared repeatedly with your hospital by emailEx. A (emphasis in original).20. In July 2023, eight of nineteen water samples returned positive for Legionella. In November 4and December 2023, testing was amended to be in alignment with point of use filter change (every60 days). The testing process, as amended, was resumed in January 2024. Tests were scheduled atsixty-day intervals, set for April, June and August. If those tests were negative, Defendant would bepermitted to return to normal operations.21. April tests were negative for Legionella. Defendant repeatedly postponed June sampling andeventually stopped responding to communications concerning the testing protocol. The City Plaintiffshave repeatedly reached out to Defendant and its principals to discuss and resume testing. Theirefforts have been in vain and this lawsuit to compel compliance followed. Vv. STATUTORY INJUNCTION22. Section 81.084(e) authorizes the Houston Health Authority to petition a district Court forinjunctive relief when (1) a person fails or refuses to comply with the Orders of the Health Authorityas required in Section 81.084, and (2) the Health Authority has reason to believe that the property isor may be infected or contaminated with a communicable disease that represents an immediate threatto the public health.23 Defendant Heights Hospital has failed and refuses to comply with the lawful Control Orderissued by the Houston Health Authority on May 5, 202324, The City Plaintiffs have reason to believe Defendant Heights Hospital is or may be infectedor contaminated with Legionella, The testing protocol has been ordered in response to an undisputedoutbreak of Legionella. Test results have come back positive multiple times during the protocolFurther, Legionella represents an immediate threat to public health. Legionnaires’ Disease is aserious form of pneumonia with a fatality rate of approximately ten percent.25. The City Plaintiffs request that this Court enter an injunction under TEX. HEALTH AND SAFETYCODE § 81.084 to compel Defendant Heights Hospital to comply with the Control Order, as well asany subsequent or further orders lawfully issued by the Houston Health Authority relating to this 5matter. PRAYER WHEREFORE Plaintiffs, Dr. David Persse, in his Official Capacity as Statutory HealthAuthority and the City of Houston request that Defendant Heights Hospital be cited to appear andanswer herein; that the Court enter an injunction compelling Defendant to comply with the ControlOrder, and all such other and further relief, general and special, at law and in equity, to whichPlaintiffs may show themselves justly entitled. Respectfully submitted, ARTURO G. MICHEL City Attorney SUZANNE R. CHAUVIN Chief, General Litigation Section By: /s/ Brian Amis Brian Amis Sr. Assistant City Attorney Texas State Bar No. 24040424 b Hi Ou SD. SOV City OF HOUSTON LEGAL DEPARTMENT 900 Bagby, 4" Floor Houston, Texas 77002 832.393-6475 - Telephone 832.393-6259 — Facsimile ATTORNEYS FOR PLAINTIFFS, DR. DAVID PERSS HIS. OFFICIAL CAPACITY AS STATUTORY HEALTH AUTHORITY AND THE CITY OF HOUSTONAutomated Certificate of eServiceThis automated certificate of service was created by the efiling system.The filer served this document via email generated by the efiling systemon the date and to the persons listed below. The rules governingcertificates of service have not changed. Filers must still provide acertificate of service that complies with all applicable rules.Mili Grau on behalf of Brian AmisBar No. 24040424Milagros.Grau@houstontx.govEnvelope ID: 91471403Filing Code Description: PetitionFiling Description: Plaintiffs’ Original Petition for Injunctive ReliefStatus as of 8/29/2024 1:05 PM CSTAssociated Case Party: Dr. David Persse, in his Official Capacity as Statutory HealthAuthority and the City of Houston Name BarNumber | Email TimestampSubmitted | Status Brian Amis Brian.Amis@houstontx.gov | 8/29/2024 12:37:46 PM | SENTCase Contacts Name BarNumber | Email TimestampSubmitted | Status Brian A.Amis brian.amis@houstontx.gov | 8/29/2024 12:37:46 PM | SENT 

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