Linda Carswell's 10-year marathon fight with Christus St. Catherine Hospital to find out what happened to her husband came as near to closure last week as she may reasonably hope.
On April 1, the First District Court of Appeals in Houston made its best effort to slam the door shut once and for all on the hospital's efforts to reverse what is left of a $2 million judgment.
For a more detailed background, ProPublica did an expose on Carswell and the hospital in 2011 that can be read here. It was part of a broader investigation done in conjunction with PBS "Frontline" and NPR into dysfunction in the nation's coroner and medical examiner offices.
In a nutshell, Katy resident and history teacher Jerry Carswell, 61, was admitted to the hospital in January 2004. He went in to treat kidney stones and he knew he had a cancer tumor on one kidney, but it was not considered life threatening.
He was found dead by a phlebotomist early the next morning. About all Linda knows about her husband's death to this day is that he was given Demerol in the hours before he passed.
It was an entirely unexpected death and Linda wanted to know its cause. Unfortunately, there was a lot of funny business going on. And by that I mean it would appear the hospital staff did a shitload of lying.
- Hospital records show a night administrator talked to the county medical examiner by phone about an hour after the death. But the M.E.'s office submitted an affidavit swearing it had no record of the call.
- Linda said the daytime charge nurse told her that the medical examiner turned down the case. The daytime charge nurse testified to the court she never spoke with Linda about the alleged call to the medical examiner.
- Linda and her son Jordan asked the hospital administrator about having a private autopsy. The hospital administrator supposedly told Linda that a private autopsy could be as much as $10,000, but the hospital could have a third-party hospital do it for free. The hospital administrator told the court she never discussed any kind of autopsy with Linda.
Why all this matters is state law requires the medical examiner to conduct the autopsy in such unusual deaths. But Jerry's body ended up getting cut open by Jeffrey Terrel, a pathologist at St. Joseph Medical Center, a facility that Linda later found out was owned by the same parent company that owned St. Catherine.
Terrel performed a clinical autopsy, which is considerably less thorough than the forensic autopsy the M.E. would have done. This was crucial in Jerry's case, because no toxicology tests were done and the family suspected an accidental overdose. That would have gone a considerable way toward proving a negligent malpractice case.
Jerry's doctor, urologist Paul Cook, ultimately signed a death certificate that ruled the death from natural causes. But the listed cause of death never made sense. Cook said it was inflammation and infection of the abdomen and stomach, conditions that he later testified at trial didn't need treatment.
Linda filed the lawsuit in June 2005 in Harris County District Court. The case went to a jury trial in 2010 and the final judgment of the trial court was $1 million for a post-mortem claim of fraud because the hospital misrepresented Linda's options.
The judgment also included $750,000 in punitive damages and $250,000 in sanctions for discovery violations. About the sanctions--the pathologist kept Jerry's heart without telling Linda, and the hospital ran tests on it without the family's permission. It also mishandled Jerry's blood serum.
Linda lost on the malpractice claims at trial, but she always knew that would be tough to prove without an established cause of death.
The hospital appealed on the post-mortem claims and on Aug. 29, 2013, the First District ruled mostly in Linda's favor. The First District, did however reverse the $250,000 sanctions award.
Not satisfied, St. Catherine asked for a rehearing en banc. The court refused, but Justice Jane Bland dissented April 1, siding with the hospital.
Justice Evelyn Keyes wrote a Supplemental Opinion to answer her peer on the bench and the hospital.
St. Catherine and the dissenting Bland claim the post-mortem claims fall within the state's Medical Liability & Insurance Improvement Act. If so, that puts those claims under the same burden as the malpractice claims.
"Unlike Carswell's medical negligence liability claims, Carswell's post-mortem claims were all based on fraudulent misrepresentations made after Jerry Carswell's death," Keyes emphasized. "These misrepresentations were made to Carswell, who was not a Christus patient, to her son, who likewise was not a patient, and to the Harris County Medical Examiner's Office, the governmental agency that is required to perform autopsies on all hospital patients who die unexpectedly."
The jury found, Keyes continued, these false representations were made to induce Linda to let St. Catherine use an affiliated hospital, and to induce the M.E. into declining to perform the independent forensic autopsy it is required by law to perform.
Bland's dissent opens with the statement, "A hospital's management of an autopsy is a 'professional or administrative service directly related to health care."
This opening sentence, Keyes noted, incorrectly implied the state's malpractice law "specifically references autopsies as a covered professional or administrative service directly related to health care."
That is incorrect. The law, Keyes said, directly contradicts that assertion. Health care or medical care involves practicing medicine. Translation: You have to have a live patient to practice medicine.
The only claim Linda elected to recover was her post-mortem fraud claim, which she recovered in her individual capacity, Keyes said, "and not in her capacity as the representative of Jerry's estate."
If it were not for how dense the three dissenters on the bench were, (yes, Bland had followers) I would say that at this point Keyes comes near to beating the proverbial dead horse: "Jerry suffered no injury from the autopsy and is not a 'claimant' on this claim for purposes of (the law)."
Keyes's closing comment is well worth repeating:
"Moreover, we specifically observe that to adopt Christus's and the Dissenting Opinion's construction of the scope of a 'health care liability claim,' and of 'health care' and 'medical care' ... would create a sweeping scope for the MLIIA that goes far beyond any construction that its language will support, that is not supported by any prior authority, and that would serve as an invitation to health care providers to conduct the exact type of wrongful cover-up of its negligent acts that ARE within the scope of the statute that Christus was found to have conducted."
One of the things that I find most disturbing about this case is the vote. The First District en banc voted four to three to deny rehearing. One vote in the other direction and where would we be?
That is some kind of testament to how willing judges are in Texas to twist the words and intent of statutory language to deny justice.
Have a heart?
There is a macabre post-script to this story. Ever since Linda found out that St. Joseph still had her husband's heart, she's been trying to retrieve it. Jerry's heart, the one she rested her head on through 33 years of marriage to listen to it beat, held deep meaning to her. She wanted it buried with him.
Christus mounted a legal battle to keep it. It's argument was that it would be crucial evidence in the event the hospital was able to get a new trial.
Included in the August opinion was an instruction to return the heart. Last November, a funeral home picked it up and Linda had it sent to a Pennsylvania laboratory for tests.
The lab could not even tell Linda if it was a human heart, let alone Jerry's heart. It had no DNA. The lab told Linda, in a speculative opinion, that if the heart had been preserved in formaldehyde, that could have broken down the DNA.
Attorneys Mike O'Brien and Neil McCabe of Houston represented the Carswells.
Warren Huang and Robert Swift at Fulbright & Jaworski in Houston represented Christus St. Catherine.