November-December 2015

Committed for consumption

Chris Ponder

Assistant Criminal ­District Attorney in ­Tarrant County

Recently, a Tarrant County resident with tuberculosis was running around exposing people to the disease. How Fort Worth prosecutors secured a civil commitment against a man who refused treatment for this highly contagious illness.

There has long been a strange romanticism associated with those who suffer from tuberculosis (often abbreviated as TB). Think Doc Holliday in Tombstone or Nicole Kidman’s heroine in Moulin Rouge. Even Lord Byron once wrote that he hoped to someday die from “consumption.” The “good death” for which many 19th-Century figures longed is not nearly as glamorous when placed in the light of 21st-Century reality. The life of a tuberculosis victim is not pleasant and, generally speaking, most people who suffer from the disease desire treatment and cure.
    Recently, however, at least one Tarrant County resident1 seemed to share the desire of Lord Byron to die of tuberculosis—although, to be fair, our patient’s motivation was likely less akin to the famed English poet’s romantic ideals and more about his desire to live life on the street as he has become accustomed. We never learned precisely what compelled him to stay on the street instead of seeking treatment, but I suspect it had something to do with the stolen BMW and methamphetamine found in his possession.
    When first contacted by Tarrant County Public Health to discuss this patient, I scheduled a meeting in the TB clinic with the TB Division Manager. As I walked through the hallways, I thought, “Isn’t this disease airborne? Isn’t this the place where infected people receive treatment? Shouldn’t I have a biohazard suit on?” The division manager quickly calmed my fears about his facility. A healthy person is actually much safer from TB within the TB clinic than in the general public. That’s because the TB clinic is outfitted with reverse airflow rooms, where the rooms are configured to create negative air pressure in the room, allowing fresh air to enter but keep infected air from escaping. The rooms and hallways also had ultraviolet light fixtures in all areas—UV light is effectively a disinfectant, killing the TB germs.
    Here’s what I learned about tuberculosis: It is a disease caused by the bacterium Mycobacterium tuberculosis. Generally, the bacteria attack the lungs, but it can also attack other areas of the body, including the kidneys, spine, and brain. Once the leading cause of death in the United States, TB spreads through the air when a person with TB disease of the lungs or throat coughs, sneezes, or speaks, sending tiny particles through the air to expose anyone who may be nearby. The germs can stay in the air for several hours, and those who breathe the air that contains the germs can be infected. This person-to-person transmission through the air is what makes the confinement and treatment of TB patients so important. If the patient is uncooperative and unwilling to seek treatment, public health interests prevail and the patient must be ordered to receive treatment and cease potentially infecting others in the community.
    TB has two distinct stages: latent TB infection and TB disease. Latent TB infection is where the infection is in the body but effectively controlled by the immune system. Patients with latent TB are not symptomatic and not contagious. It is when the immune system is compromised that latent TB becomes active and the patient is symptomatic and contagious with TB disease. According to the Center for Disease Control and Prevention, there were 536 deaths from TB in the United States in 2011, the last year for which data is available. And TB deaths have been on a steady decline: 69 percent since 1992.
    Our patient first came to the attention of Tarrant County Public Health after he was struck by a car and taken to the hospital. When hospital personnel reviewed his chest X-ray, they noticed an abnormality and the hospital performed a test for TB, which came back positive. An investigator from Public Health met with the patient in the hospital and explained the risks to him and the public if he did not submit to treatment and see it through to completion. Our patient agreed to comply and, pursuant to Texas Health and Safety Code §81.083, the investigator served him with an administrative order to submit to treatment. The administrative order gave instructions about where to go for medication, how important it is to keep all appointments, and that it is essential for the patient to advise the investigator if there is a change in residence. The patient was also warned that his failure to comply could result in the initiation of court proceedings.
    The treatment for TB is through the regular administration of antibiotics over the course of six or more months. Patients under the care of the Health Department are subjected to directly observed therapy (DOT), which requires ingestion of the medication in personal view of the healthcare worker. This is necessary because of the proliferation of drug-resistant TB. Drug-resistance occurs from the improper or incomplete administration of the antibiotics that treat TB.
    Hours after being served this administrative order and agreeing to comply, our patient fled the hospital against medical advice. Health Department investigators located him two weeks later in the Parker County Jail. Once released, the patient finally came to the TB clinic and again pledged to comply with the treatment. He took one dose of each of the medications while in the clinic and swore that he would meet officials there the next day. He did not. After this second violation of the administrative order, the Health Department contacted our office to prepare for civil commitment of the patient to the Texas Center for Infectious Disease. The severity of the symptoms varies depending on the patient’s age and underlying general health. Though our patient had active TB infection and was contagious, his symptoms were relatively minor. We had no idea how many people he had already exposed to this disease, but the longer he stayed out in the public, the greater the possibility of infection.

Civil commitment
Chapter 81 of the Texas Health and Safety Code establishes the procedures and remedies for dealing with communicable diseases, including TB. (It is the same statutory basis used in the recent Ebola scares.) Section 81.083 provides that if a county health authority “has reasonable cause to believe that an individual is ill with … a communicable disease, the … health authority may order the individual … to implement control measures that are reasonable and necessary to prevent the introduction, transmission, and spread of this disease.” The conventional control measures are directly observed therapy and self-quarantining. The administrative order from the health department does not, however, have any enforcement provision. Court intervention is the next step in securing compliance.
    Although we had the information necessary to file for the commitment, we still did not know the patient’s location. Health Department investigators took to the streets to locate him, with us on standby to immediately file upon learning of his location. Two months passed before I received a call on a Monday morning from a nurse in the TB clinic about our patient; he was in the Tarrant County Jail, having been arrested over the weekend for car theft and drug possession. We had to move quickly on filing for commitment because his bond was only $5,000, and if he was able to post it, he might be lost again.
    Section 81.151 of the Texas Health and Safety Code provides that a county health authority may request a county or district attorney to file an application for court-ordered management of a TB patient. The application is filed in the district court. With the application, there must also be filed an affidavit of medical evaluation of the patient and a copy of the administrative orders previously delivered to him. The suit must be styled using the patient’s initials and not his full name to afford a thin layer of privacy (by preventing quick searches of case names in a public database) from disclosing the condition. There are not, however, any provisions for sealing the case or any requirement that the patient’s name not be used in the body of the application or in the required attachments. The patient is also entitled to the appointment of an attorney during the proceeding.
    In addition to the application, we prepared a motion for order of protective custody, as authorized by Texas Health and Safety Code §81.161, because he was an immediate threat to public health and had previously refused compliance with the administrative orders. Our patient had shown himself to be elusive and inclined to avoid treatment, so placing him in protective custody was a necessity. That meant a reverse airflow-equipped room in John Peter Smith Hospital in Fort Worth. He would stay in a room at JPS for the next couple of weeks until the completion of the commitment proceeding. (The hearing on the application has to occur within 14 days after the date that the application is served on the patient. The trial court may, however, grant one 30-day extension.)
    The relief we sought in the application was to commit the patient to the Texas Center for Infectious Disease (TCID) for a period not longer than 12 months. The expectation was that treatment would not take all 12 months but would be at least six. The TCID is an impressive facility—far different from the State Tuberculosis Hospital that opened in 1953. The TCID is a state-of-the-art hospital situated on 56 acres in southeast San Antonio; it has only 75 beds to treat patients admitted by court order or referral by other medical facilities unable to treat a contagious disease.
    By any standard, a stay in the TCID is far more pleasant than time in jail or on the streets, which were our patient’s primary residences. But if we were going to commit him to this facility, what would we do with the criminal charges (of car theft and drug possession)? After consultation with our elected Criminal District Attorney, Sharen Wilson, our office dismissed the criminal case against the patient, which allowed him to be placed into protective custody at the hospital and moved forward to commitment. I filed the application and motion for protective custody with the Tarrant County District Clerk and was randomly assigned to Judge R.H. Wallace’s 96th District Court. I went to his chambers to present the motion for protective custody, and after explaining the mechanics of the proceeding, I obtained his signature on the order for protective custody and appointment of attorney.
    The attorney appointed by the district court to represent the patient had represented the last TB patient in a commitment proceeding (several years before). His experience with the process worked in our favor as the patient finally consented to an agreed judgment and consented to treatment at the Texas Center for Infectious Disease. It took the appointed lawyer a couple of days to secure the agreement and, in the meantime, we scrambled trying to make arrangements to conduct a court proceeding in a small hospital room. But fortunately, it was not necessary. With our patient’s agreement, Judge Wallace signed the order, and Tarrant County Sheriff’s deputies took custody of the patient and delivered him to the door of the hospital in San Antonio.
    Now that he is in a structured setting with the best treatment available, our patient should recover from this disease that could have killed him and those with whom he has had contact. Never had I imagined that it would take so much work and effort to force someone to treat a potentially fatal but curable illness.


1 Although the media disclosed the patient’s identity and the statute does not mandate confidentiality other than using initials, I would prefer to merely refer to him as “the patient” or “our patient.”