Sunday, May 22, 2016

The Civil Justice System's Missing Heart

Although this blog is primarily about criminal justice in Texas, I have also touched on civil justice issues. I read a Texas Tribune story this week entitled High Court Rules for Hospital in Missing Heart Case written by Edgar Walters. After reading, I thought to myself our civil justice system has become the Cowardly Lion of Wizard of Oz fame. All roar and no substance.

My father is a physician, an obstetrician who has practiced medicine in the Houston area for more than 50 years. I have tried medical malpractice cases to juries and was board certified in personal injury trial law in Texas for 15 years (it lapsed in 2015). I have lived thorough an age watching cases such as the infamous McDonald's coffee spill case taint a willing public ready to believe most every personal injury suit is a game of lawsuit lottery. This fervor culminated in Texas effectively making claims for medical negligence cost prohibitive as a result of legislation known as the Texas Medical Liability Act (TMLA).

The TMLA imposed caps on damages, and, most significantly for an unfortunate woman named Linda Carswell, strict limitations on periods in which to file a lawsuit seeking damages caused by hospital negligence. It has resulted in many more injustices than perpetrated on Linda Carswell and her dead husband, Jerry. Linda's case had just the dash of macabre necessary to the draw interest of traditional and social media and, yes, bloggers like me.

According to the Tribune, here are the basic facts:
The case traces back to the morning of Jan. 22, 2004, when Jerry Carswell, admitted to [Christus St. Catherine Hospital in Katy, Texas] with kidney stones, was found dead in his hospital bed. Linda Carswell wondered if his death was due to a narcotic the hospital had administered. Carswell has said she asked for an independent autopsy, but her husband's autopsy was performed by a separate hospital under the same ownership as Christus St. Catherine Hospital — a fact she said she did not know at the time. That autopsy, which was inconclusive, did not include a toxicology test, which Carswell said could have shed light on whether the narcotic had killed her husband.
Then things got REALLY weird:
Further complicating matters, the examiner who performed the autopsy also allegedly removed the dead man’s heart without Carswell’s consent. The hospital fought not to release the organ, saying it could be important evidence that would show Carswell's husband died of a heart attack.
After an appeals court ordered the hospital to release the heart to Carswell, a separate forensic biologist said it contained no human DNA — either because of the way it was preserved, or because there was a 'real possibility that the heart submitted was not human,' according to court documents.
A trial court jury sided with Carswell, who says she was misled by Christus Health about the autopsy’s independence and scope, and awarded her a rare $2 million fraud judgment against the health care provider.
In short, Jerry Carswell may have been negligently killed by an accidental overdose administered by staff at a hospital where he had been admitted. A clinical autopsy to try and determine cause of death - performed by a sister hospital - was either negligently performed, or was rigged to hide evidence that Carswell was negligently overdosed. A jury decided the autopsy was fraudulently represented to Liinda, but the hospital, as is often the case, was bailed out by an appellate court. In this case, The Supreme Court of Texas.

Said another way, the hospitals got away with it. This may have been a proper result under the law, but for pity sakes, if this is a proper result, Texas civil justice has become The Kingdom of Cowardly Lions.

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