Come November, the Texas Supreme Court will hear oral arguments on whether a tort reform measure applies to a fraud claim brought by a woman alleging a health care provider misrepresented her husband’s autopsy.

Last May, Christus Health Gulf Coast filed a petition for review with the high court, arguing that an appellate court erroneously rejected its contention that a fraud claim against it is subject to dismissal under the Texas Medical Liability Act because the plaintiff did not file an expert report, court papers state.

On July 10 the case was set for oral arguments on Nov. 13. The petition for review was granted a month earlier on June 12.

Plaintiff Linda Carswell filed a med-mal claim against Christus after the January 2004 death of her husband, Jerry, who may or may have not died from a drug overdose while in the care of Christus St. Catherine Hospital, court records show.

Linda later pled additional claims for fraud, breach of fiduciary duty and negligence against Christus, based on its alleged misrepresentations to her and to the Harris County Medical Examiner’ Office, after the unseen and unexplained death of Jerry.

She alleges Christus nurses improperly obtained her written consent to have an independent pathologist perform her husband’s autopsy.

Linda further accused Christus of conspiring to commit a fraudulent cover-up of Jerry’s death, court records show.

Linda also alleged an interference with right of interment claim against Christus, based on the pathologist’s retention of Jerry’s heart following the autopsy. Blood serum belonging to Jerry was also not immediately disclosed.

Christus argued the missing heart and blood were mistakes, while Linda contended the health care provider was concealing critical evidence.

After a court battle, Linda received the heart from Christus and sent the remains to be tested, which revealed the heart contained no human DNA and most likely was not human, court records show.

The case proceeded to trial in August 2010. The jury found against Linda on the health care liability claim and the claim for interference with right of interment, which she did not challenge.

However, the jury found in favor of Linda on her claims of fraud, breach of fiduciary duty and post-mortem negligence, awarding her $1 million in mental anguish damages and an additional $1 million in exemplary damages on her fraud claim.

The trial court entered judgment in favor of Linda on the fraud claim, but reduced the award to $750,000 in accordance with the Texas Civil Practice and Remedies Code, court papers state.

After a corrected amended judgment was entered, the case was then brought before the First District Court of Appeals in Houston, and in August 2013 justices affirmed the judgment but modified the damages.

Both sides are petitioning the high court.

Linda is asking whether the appeals court erred in reversing a $250,000 sanction against Christus and in reducing the award of pre-judgment interest.

She is represented in part by Houston attorney Neil McCabe.

The Houston law firm Fulbright & Jaworski represents Christus.

Supreme Court case No. 14-0362

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Christus St. Catherine Hospital
701 S. Fry Road
TX - 77450

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