A Texas appeals court ruled Thursday against the hospital that has been blocking Linda Carswell from retrieving the heart of her husband, who had died unexpectedly while in the hospital’s care in 2004.
September 4, 2013

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Christus St. Catherine Hospital, Katy,Texas

By Marshall Allen, ProPublica

Linda Carswell has passed a major milestone in her quest to get her husband's heart back.

A Texas appeals court ruled Thursday against the hospital that has been blocking her from retrieving the heart of her husband, who had died unexpectedly while in the hospital's care in 2004. The court also upheld a $2 million fraud judgment Carswell won against the hospital.

Jerry Carswell, 61, had been admitted to Christus St. Catherine Hospital, in Katy, Texas, with kidney stones and was supposed to have gone home on the day he passed away in January 2004. He had been given narcotic painkillers, but the exact cause of death was never determined.

Linda, his wife of 33 years, filed a lawsuit and discovered something that's horrified her ever since: The hospital pathologist who did Jerry's autopsy kept his heart. Medical providers refused to return it, as ProPublica first reported in 2011. It remains refrigerated in a hospital morgue.

Carswell compares the legal battle to recover his heart to a search and rescue mission to duly honor and respect her husband. "It's in the hands of the people that took his life," Carswell said. "I don't want them to have anything that belongs to Jerry."

On the morning that Jerry died, Linda urged hospital employees to ask the Harris County Medical Examiner's Office for a complete and independent autopsy to determine the cause of death. But a hospital employee told Carswell that the medical examiner's office refused to take the case because officials there had been told that he died of renal failure.

That statement was described as "a material, false misrepresentation with at least reckless disregard for the truth" in the ruling by a three-judge panel of the Court of Appeals for the First District of Texas.

Hospital employees also told Carswell that a complete autopsy that's "just like" a forensic autopsy could be performed at St. Joseph Medical Center. They did not tell Carswell that St. Joseph, at the time, was owned by the same company as Christus St. Catherine, where her husband died.

In fact, hospital autopsies are rare and are not like more thorough forensic autopsies. Carswell's autopsy did not include any toxicology tests, which her lawyers argued might have been able to determine whether painkillers contributed to his death.

Attorneys for Christus St. Catherine have argued that Jerry's heart cannot be returned because it's possible evidence in the legal case. They blocked St. Joseph Medical Center, by then owned by a different company, from turning the heart over to Linda Carswell.

While finding fraud, the jury that originally heard Carswell's case rejected a claim that medical negligence caused Jerry's death. Carswell did not appeal the verdict, leading the appeals court to determine the hospital had no need to maintain the heart as evidence.

Attorney Erin Lunceford, who represents St. Joseph Medical Center, said she was still digesting the court opinion and discussing it with her clients. But now that the appeals court has removed the legal barrier, she said the heart could be returned, assuming the Christus hospital doesn't otherwise intervene.

Christus attorneys did not return calls for comment. Neil McCabe, the attorney who represented Carswell before the appeals court, said it's possible the hospital could still try and maintain possession of the heart even though the appeals court determined it's not relevant to the fraud verdict.

Carswell said the ruling validated the mistreatment she and her family suffered. "Clearly, wrong was done in Jerry's death," she said. "And on top of that, clearly the hospital tried to cover things up."

After almost 10 years, she feels she and her family can come to closure once the heart is returned. She's selected a small box for it, and looks forward to burying it alongside her husband's other remains.

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