Friday, November 6, 2015
Hospital says it provided medical care for dead man
In the wake of Halloween and, in these parts, the equally important Day of the Dead, let’s ponder a question now before the Texas Supreme Court: Is an autopsy part of health care?
It is, believe it or not, a multi-million dollar question.
The issue is raised in a case out of the Houston area involving allegations of fraud and cover-up.
And, in a decidedly unpoetic way, a stolen heart.
Parts of the story were told recently by the Texas Tribune.
Earlier parts were told by NPR and Pro Publica as part of a series on the national failure to use autopsies to determine medical malpractice.
It began nearly a dozen years ago when 61-year-old Jerry Carswell — a history teacher and track coach — was admitted to Christus St. Catherine Hospital in Katy for kidney stones.
Early in the morning he was to be released after an uneventful operation, Carswell was found unresponsive in his bed. CPR failed.
Carswell’s widow Linda could get no explanation of the death from Hospital staff.
She suspected it may have been from a narcotic the hospital had given Carswell for his pain.
Linda asked a hospital official about an autopsy.
A private one could cost $10,000 she was told, but the hospital would arrange for one for free.
Linda Carswell testified she was told the autopsy would be performed by a doctor from another hospital, and would be independent.
The hospital said it made no such promise.
In fact, the autopsy was performed at nearby St. Joseph’s Hospital in downtown Houston.
It was owned by the same nonprofit company as the hospital where Carswell died.
And the physician who performed the autopsy worked for a pathology group that served both hospitals.
The autopsy was inconclusive as to the cause of death.
But neither blood nor urine was tested, leaving the question of the narcotic dose unaddressed.
Linda Carswell sued the hospital for negligence and fraud.
She said if she knew the autopsy was to be performed at another Christus hospital, she would have paid for a private one.
During a deposition of the doctor who did the autopsy, Linda’s lawyers learned that he had removed the heart and stored it at his lab without telling anyone.
Christus St. Catherine recovered the heart but refused to turn it over to Linda.
Eventually an appeals court ordered the hospital to do so.
New testing determined that the heart contained no human DNA.
This could be because of the manner in which it was preserved.
There was also, according to a court document, a “real possibility that the heart submitted was not human.”
A judge would fine the Christus Health, the parent company of both hospitals, $250,000 for mishandling the heart and the blood serum.
Later, after 22 days of testimony, a jury would award Linda Carswell $2 million for fraud.
Which leads us to the question before the Texas Supreme Court.
Christus is arguing that the autopsy was part of its medical treatment of Carswell.
That would make it a suit over medical malpractice rather than over fraud.
The reason: a constitutional amendment approved by voters in 2003 enabled the Legislature to set up procedures that make medical malpractice suits harder to win than other suits.
It also limited damage amounts in those suits.
The defense-oriented Texas Supreme Court has been expansive in its definition of medical malpractice.
In 2012, for example, the state Supreme Court ruled 6-3, that nurses injured on the job were covered by the rules for medical malpractice cases, even though they were not patients and their injuries were not caused by medical malpractice.
The Legislature fixed that last session.
Still, it’s not inconceivable that the Supreme Court will rule that carving up a dead body is a medical, not just a forensic, operation.
And hospitals throughout the state will celebrate.
A belated Happy Halloween!