Ex Parte Motion for a Temporary Restraining Order (2008) by lyk18840

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									                             COMMONWEALTH OF MASSACHUSETTS

SUFFOLK [OR THE                                                              SUPERIOR COURT
COUNTY WHERE DEFENDANT LIVES], ss                                            C.A. No. __________
____________________________________________
                                                              )
COMMONWEALTH OF MASSACHUSETTS, BY                             )
AND THROUGH JOHN M. AUERBACH,                                 )
COMMISSIONER OF PUBLIC HEALTH, and                            )
                                                              )
BOARD OF HEALTH OF THE CITY                                   )
OR TOWN OF [ _______________________]                         )
                                                              )
                Plaintiffs                                    )
                                                              )
                  v.                                          )
_____________________________                                 )
NAME OF INDIVIDUAL                                            )
WHOSE ISOLATION IS SOUGHT                                     )
                                                              )
                Defendant (Patient)                           )
                                                              )

           EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER

        Now come the Plaintiffs, John M. Auerbach, Commissioner of Public Health

(“Commissioner”), and the Board of Health of the [City or Town of ___________

(“________________”)], and move this Honorable Court pursuant to Mass. R. Civ. P. 65, and ex

parte pursuant to Rule 9A of the Superior Court Rules, for a temporary restraining order that the

defendant (“patient”) be removed pursuant to Mass. Gen. L. c. 111, §§ 95-97 (removal of person

who has a dangerous disease) to [DESIGNATED HOSPITAL], and that the patient remain

there for ten days pending a hearing on the plaintiffs’ application for a preliminary injunction, or

for ten days following resolution of fever and until [his/her] respiratory symptoms have resolved

or significantly improved, or until the [Board of Health of NAME OF CITY OR TOWN or

Department] determines based on the medical records, that the case may be excluded as a suspect


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or probable SARS case because an alternative diagnosis can fully explain the illness, the case has

a convalescent-phase serum sample which is negative for anti-body to SARS-CoV, or the index

case upon which the case was reported has been subsequently excluded as a case of SARS, and

other possible epidemiologic exposure criteria are not present, whichever occurs first.

        As grounds therefore, the Plaintiffs say that, as is detailed in the accompanying Affidavit

of Physician, Other Health Care Provider, or Local Board of Health, the patient is a probable or

suspected case of Severe Acute Respiratory Syndrome (“SARS”); that SARS is communicable;

that SARS has been declared a disease dangerous to the public health by the Department of

Public Health and the President of the United States; that the Plaintiffs are of the opinion that,

based upon recognized infection control principles and the guidelines of the U.S. Centers for

Disease Control, the patient poses a risk of transmitting SARS to other people; that SARS can be

fatal; that an outbreak of SARS will pose significant threats to human health, infrastructure

responsible for critical community services, both health and non-health related due to expected

widespread absenteeism, may cause a critical shortage of health care resources such as staffed

hospital beds, isolation rooms, and other resources, and may cause a massive test of the

emergency preparedness system; that if the patient is not isolated, immediate and irreparable

injury, loss, or damage will occur to the public health, fisc, and resources.

        As further grounds for this Motion, the Plaintiffs say that isolation is a way to stop the

spread of SARS. While isolation in the home may in some cases be effective, in this case, the

Plaintiffs are of the opinion that the patient cannot properly be isolated at home,




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Mass. Gen. L. c.111, § 97, because: STATE WHY HOME ISOLATION WOULD NOT BE

EFFECTIVE IN THIS CASE.

        As further grounds for this ex parte Motion, the Plaintiffs say that not only is speed

essential, but also, the patient is not able to appear in person for a hearing without presenting a

hazard to others.

        For these reasons, if the patient is not removed to a hospital, the public will suffer an

immediate and irreparable injury.

        In support of this Motion, the Plaintiffs incorporate by reference the [LIST: Affidavit of

Physician, Other Health Care Provider, or Local Board of Health and/or Affidavit of Patient’s

Unwillingness to Remain Isolated at Home.]

        WHEREFORE, the Commonwealth of Massachusetts and the Board of Health of

[NAME OF CITY OR TOWN] respectfully request that the Court: (a) approve, in accordance

with the Court’s general equity power and Mass. R. Civ. P. 65, a temporary restraining order

requiring the patient to be removed to and remain in the [NAME OF HOSPITAL] for ten days

pending a hearing on the plaintiffs’ application for a preliminary injunction (unless within the ten

days, for good cause shown, the court extends the order for another ten days), or for ten days

following resolution of fever and until [his/her] respiratory symptoms have resolved or

significantly improved, or until the [Board of Health of NAME OF CITY OR TOWN or

Department] determines based on the medical records, that the case may be excluded as a suspect

or probable SARS case because an alternative diagnosis can fully explain the illness, the case has

a convalescent-phase serum sample which is negative for anti-body to SARS-CoV, or the index

case upon which the case was reported has been subsequently excluded as a case of SARS, and

other possible epidemiologic exposure criteria are not present, whichever occurs first; (b) issue

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an order of notice scheduling a hearing on the Plaintiffs’ Application for the Preliminary

Injunction, within ten days; and (c) appoint counsel for the patient, if the patient is indigent.

                                Respectfully submitted,

                                COMMONWEALTH OF MASSACHUSETTS

                                JOHN M. AUERBACH
                                COMMISSIONER OF PUBLIC HEALTH

                                MARTHA COAKLEY,
                                ATTORNEY GENERAL



                                By: ______________________________________
                                [NAME OF DPH ATTORNEY]
                                Special Assistant Attorney General
                                [SIGNATURE BLOCK FOR DPH ATTY/SAAG]



                                [NAME OF CITY OR TOWN]
                                By: ______________________________________
                                [NAME OF CITY OR TOWN COUNSEL]
                                ________________________________________
                                [SIGNATURE BLOCK FOR CITY OR TOWN COUNSEL]




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