Eleven years after a man's unexplained death in a Katy hospital sparked a lawsuit involving allegations of malpractice, deception and theft of a human heart, the bizarre case has made its way to the Texas Supreme Court, which will answer a simple yet macabre legal question: Does an autopsy fall under the definition of health care?

If the high court says yes, critics say it would be the latest decision by conservative justices broadening a landmark state law that makes it tougher to sue doctors and hospitals for alleged wrongdoing. Supporters of the legal challenge — brought on an appeal by Christus Health, then owner of the Christus St. Catherine Hospital in Katy — say Texas voters approved sweeping tort reforms in 2003 to limit lawsuits against health care providers, and that autopsies on dead patients are a valid part of the medical care hospitals provide.



The case traces back to the morning of Jan. 22, 2004, when Linda Carswell's husband, Jerry, admitted with kidney stones, was found dead in his hospital bed. 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.

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 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. Christus Health appealed the case and is still fighting it, although it sold Christus St. Catherine Hospital to Houston Methodist in 2014.

A spokeswoman for Christus Health declined to comment for this article. But in court briefings, lawyers representing Christus Health asked the Texas Supreme Court to weigh in on whether Carswell's case should have fallen under the Texas Medical Liability Act. That law, the health care provider argues, defines the nebulous term “health care” broadly enough to include autopsies — which would render Carswell's suit moot because she did not meet the legal requirements to sue.

That would go against how an appeals court ruled in the case in 2013. But Christus Health's lawyers argue that the appellate judges behind that ruling “improperly based their conclusions that a decedent is not a patient and that an autopsy is not a form of medical treatment on nothing more than their mere ipse dixit”— a legal term meaning an arbitrary “say-so.”

“A court’s mere say-so or ‘logic’ is not sufficient legal basis for a multimillion dollar judgment,” Christus Health's lawyers wrote.

Carswell and her lawyers say the hospital is trying to win on a “technicality.” If the case falls under the medical liability law, Carswell would not be able to sue because she did not meet the law’s strict requirements, like hiring a medical expert and filing suit within a strict two-year statute of limitations.

“Did we have to use expert testimony? If the answer is yes, we lose,” said Neil McCabe, an attorney for Carswell.

If the high court rules that an autopsy falls under the medical liability law, McCabe said it would “definitely broaden the statute — but that’s what the court’s been doing.” He said he hoped the Texas Supreme Court would rule similarly to courts in other states like New Mexico, which have held that autopsies are not considered health care.

In 2003, Texans narrowly approved its sweeping tort reform measure, authorizing it as an amendment to the state constitution with 51 percent of the vote. The law continues to draw criticism that it has made it nearly impossible for people with legitimate malpractice cases to pursue litigation.

The Texas Medical Liability Act defines “health care” as “any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement” — a key section of the law Christus Health cited in its letter to the court.

Those who support giving doctors and hospitals more protections from lawsuits say the law has been effective in encouraging health care providers to practice in Texas.

“Twelve years since the passage of our historic 2003 medical liability reforms, we continue to attract new physicians to Texas in record numbers," said Howard Marcus, an internist in Austin and chairman of Texas Alliance For Patient Access, in a news release last month.

The tort reform measures “have reversed the epidemic of lawsuit abuse and, in turn, provided sick and injured Texans with better access to lifesaving care," he said.

But critics, including trial lawyers and consumer advocates, say it has limited Texans’ constitutional right to the courtroom.

Carswell, in a telephone interview, said she feared her legal battle at the high court would morph into a political one, in part because Texas Supreme Court justices are elected.

“I’m doing everything I can right now to bring attention to the fact that we’re just one story of many stories,” she said. “If you get harmed in a hospital here in Texas, the doors to the court room are actually shut and barred.”

Disclosure: The Texas Alliance for Patient Access is a corporate sponsor of The Texas Tribune. Christus Healthcare was a corporate sponsor of The Texas Tribune from 2010 to 2013. A complete list of Tribune donors and sponsors can be viewed here.

