The Tell-Tale Heart

Sometimes doctors bury their mistakes, but what happened at Christus St. Catherine Hospital, outside of Houston, is ridiculous.

Earlier this week, a jury found the hospital liable for fraud for events after the death of Jerry Carswell, 61, in January 2004, and awarded his widow $1 million in actual damages plus $1 million in punitive damages.

The $2 million verdict is in addition to the  $250,000 sanction the judge slapped the hospital with during the pendency of the case for tampering with evidence.

That’s right, I said fraud.

Legally, fraud is tough to prove and judges are conditioned to throw these cases out before they even get to a jury.

The reason fraud is difficult to prove is that, among other things, the plaintiff is required to show that the defendant acted with “scienter,” which means that it’s the plaintiff’s burden to prove that the defendant knew he was lying and did it deliberately.

It takes hard evidence to prove fraud.  You’ve got to show up in court, essentially, with the smoking gun.

Carswell, a high school track coach in Houston, spent two nights in the hospital for kidney stones.  He died after an injection of narcotics.

According to Carswell’s lawyer, an uncredentialed licensed vocational nurse was left to monitor him and she missed the signs of an overdose.  The lawyer says the hospital then engaged in a conspiracy to cover up why he died.

The hospital suggested to the widow that an autopsy be performed. Somewhere between the autopsy and the funeral, however, Carswell’s heart went missing and no one bothered to tell the widow.

It took 18 months into litigation for her to find out that her husband had been buried without his heart.  She also found out that some blood samples had been destroyed and that’s when the judge fined the hospital $250,000.  The fine has already gone up on appeal and been upheld.  Now the hospital plans to appeal the fraud verdict.

This episode is just another example of how a conservative southern state got swept up in the “tort reform” movement.

When the Republicans took over, they extinguished the traditional common law rights of tort victims for the benefit of their friends in the insurance industry.

At least in Georgia, our Supreme Court recognized what had happened and chucked out the worst of the “reforms,” the general damage cap, as being incompatible with our state constitution.  Imagine that.

Unfortunately for Texans, it’s still the law there that damages for wrongful death are capped at $250,000.  If the hospital had been forthright, in other words, it could have paid Mrs. Carswell a pittance and called it a day.

Instead, the hospital got cute and got what it deserved.

Glenn L. Goodhart, M.D., J.D.

6065 Roswell Rd.

Northside Tower
Suite 410

Sandy Springs, GA 30328

Phone: (404) 255-3282

Toll Free: 866-959-2148

Article first published as The Tell-Tale Heart on Technorati.

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About Public Protection Lawyer

lawyer and physician
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One Response to The Tell-Tale Heart

  1. Marjorie says:

    You have made some decent points there. I looked on the internet for more info about the issue and
    found most people will go along with your views on this site.

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