Now the title got your attention, but it is not funny. Neil McCabe today begins the trial of Jerry Carswell’s lost heart in a cover up by a Harris County hospital. The trial starts today and is expected to last three weeks.

I expect one of the other attorneys to be at Friday’s hearing on the defamation case and I wonder if Lin Wood will be there or in California since he is listed as one of Howard K. Stern’s counsel in that case for depositions to introduce Don Clark and company.. However, Mr. Wood I believe is probably going to be there on Friday because this hearing is so important to his client in Texas.

Back to the lost heart. I have been following these cases for myself because of all of the hospital acquired infections etc. that end up killing people while they are in the hospital that is suppose to save them and I am sharing it with all of you because of the impact on this Friday’s hearing in Houston in the Harris County case of defamation and conspiracy to defame.

The death of a loved one is unbelievably hard to bear, especially when it is sudden and unexpected. It is perhaps even harder when the patient is in the hospital for a supposedly minor condition.

However, a three-month KHOU-TV last fall, November 2009, did an investigation that found evidence of what may be a national problem when it comes to medical records. It seems that some nurses, doctors and administrators have concealed, faked and even destroyed these documents when trouble happens.

Melissa Dorriety Case, Lost hospital records

Melissa, checked into Christus St. Catherine in Houston Texas for diabetes problems. There were no signs to cause her husband of 30 years to worry. Things went well and Melissa was to go home the next morning.

When her husband and son got to the hospital the next morning with bagels in hand to take Melissa home, what they found was horrifying. Melissa could not be aroused from a deep sleep by her husband and son and died soon after their arrival at the hospital. The family will always be haunted that when they, NOT the hospital staff, found Melissa she had one tear running from her right eye and down her cheek.

Melissa Dorriety’s husband, sued Christus St. Catherine but when the medical records were subpoenaed the attorney, Jim Perdue, for her family said one very important medical document was missing. It was the nurse’s worksheet showing Melissa’s condition, including the original medical notes made about her.

Jim Perdue told KHOU-TV, “That may be one thing in an isolated legal case, but not when you see it happening again and again and again.”

Sharon Rogers Case also had missing records

Rogers’ Estate found the same problem of missing hospital records when her Estate sued for medical malpractice, in that a section of her vital sign records during critical hours of her care could not be found.

KHOU-TV found evidence that this is not just one hospital in Houston Texas but during their investigation they found similar accusations regarding various hospitals around the country.

A surgeon in New Jersey removed the wrong lung from a patient. He then changed the medical record afterward, so it appeared he had in fact taken out the correct lung.

That led to New Jersey criminalizing altering or destroying medical records, but in Texas, there is no such law. WHAT??? You can make a deadly mistake and legally lose or change the records to show you did not in Texas?

KHOU-TV investigation they also discovered the Texas Department of Health could not find a record of investigating a single allegation related to concealing or tampering with medical records at any hospital in the state.

Jerry Carswell case is the one beginning a jury trial per the Court’s docket today, August 2, 2010.

I have up the latest filing on that case but read with care it is in fact a horror story and one that left me shaken.
Mr. Carswell entered the hospital through the emergency room with a kidney stone in 2004. He responded well to the treatment but Chritus St. Catherine wanted to keep him a few days to monitor his condition.

The hospital was full so the only bed for Mr. Carswell was in the pediatric ward, not where he needed to be which would have been the adult surgical wing. Early the next morning, the phone rang. Linda his wife has testified that a representative from the hospital asked her to come there immediately because an emergency had developed. Within minutes of her arrival, her life changed forever. Mr. Carswell had died about 5 AM that morning.

However, Carswell’s widow in the midst of her grief was together enough to want an independent autopsy done with the Harris County Medical Examiner’s office. The staff at Chritus St. Catherine told the grieving widow that the Medical examiner’s office had decline to do the autopsy because there was no foul play indicated in the death and instead they shipped Mr. Carswell’s to one of their sister hospitals for the autopsy. Ms. Carwell agreed for the autopsy to be done at the other hospital at the time not knowing it too was owned by Christus. Do you think she got a complete unbiased autopsy, I don’t and the records seem to bear that out.

For those of you who are not familiar with Texas statute, the medical examiner always does an autopsy if asked when the cause of death is unknown. That might have been inconvenient for Christus though because Mr. Carswell died from a drug overdose at the hands of nurses at Christus St. Catherine.

The Harris County Medical Examiner’s office could not find any record of Christus ever calling them to perform the autopsy. It was later found that Mr. Carswell’s body fluids disappeared, after his window asked for them to be saved. No blood or body fluids to test, how convenient for the hospital.

The worst news, though, came nearly two years after Jerry had been buried. His heart had been lost by the hospital and his family never notified.

After Carswell’s family filed suit, under sworn questions, the autopsy doctors said they had removed her husband’s heart and stored it in a container. When the questioning turned to who knew about the decision to remove the heart, the doctor admitted that they didn’t tell the Carswell family they were taking out the organ.

Judge Josefina Rendon of the 165th Court in Harris County issued a rare $250,000 sanction against Christus St. Catherine’s, ruling that the hospital “improperly concealed the heart tissue of Jerry Carswell in a Christus pathology laboratory.” The sanction further said the hospital also concealed blood samples, and determined that Linda Carswell’s case against the hospital had been “severely prejudiced” due to the “improper concealment of critical physical evidence.” The Court is going to give the Jury what is called an inferred direction. That means that because evidence was destroyed the jury has the right to infer that Christus St. Catherine did in fact have something to hide and so destroying evidence had to be considered by the jury hearing the case. This ruling was taken all the way up to the Supreme Court of Texas and they agreed with the trial court’s assessment of the $250,000 sanction.

As a high school coach, Jerry Carswell helped mentor students and develop some of them into professional athletes, like NFL star Bert Emanuel, who would later call Carswell the “best coach ever.”

My mother also in 1978 went into a hospital in Dallas Texas for minor surgery and died two weeks later because of miscommunications between the doctors and the hospital personnel. She died because no doctor prescribed post surgery antibiotics for her and her body became septic in 48 hours following the surgery, they agreed to pay all of the expenses in trying to save her and we agreed not to sue them.

We all know that many of our members have similar horror stories of loved ones lost to a minor condition once they entered the maze of hospitals.

Today the advice that most advocates give is have a medical advocate present to speak for you, to monitor the medication and the attention needed by the patient. It is best if someone can stay 24 hours a day. How sad is that??

So Virgie Arthur’s lead attorney, Neil McCabe, will be in a jury trial come this Friday’s hearing and I predict not before Judge Weiman on multiple Motions pending.

My question though is can a unbiased jury be seated in this medical malpractice case of this magnitude with the Jury Instructions the Court will give? How many of you have horror stories about hospitals or have heard of one?

We will keep you updated on the Howard K. Stern, Dr. Sandeep Kapoor and Dr. Khristine Eroshevich trial as it progresses this week and also update any paperwork on the multiple Motions in both Court and the Appeals Court as they become available.

LATEST FILINGS IN THE TEXAS STATE COURT ON VIRGIE ARTHUR VS HOWARD K STERN, TMZ.COM, LARRY BIRKHEAD, ART HARRIS, HARVEY LEVIN ET AL.

August 2, 2010 Art Harris Emergency Motion to Unseal part of the deposition of Virgie Arthur to become public records with him Motion for Final Summary Judgment.

August 2, 2010 Affidavit of one of CBS’ attorneys in support of Harris Motion to Unseal part of the deposition of Virgie Arthur to become public records with him Motion for Final Summary Judgment.

August 2, 2010 Harris Notice of Submission for Oral Hearing on August 6, 2010 with all of the other things for the Court to decide.

August 2, 2010 TMZ.com and Harvey Leving Second Motion for Final Summary Judgment.

August 2, 2010 TMZ Notice of Submission of Summary Judgment without a hearing for August 23, 2010.

A couple of comments here. Even though Harris and TMZ both refer to Harris’ fling for Summary Judgment yesterday at the same time that TMZ and Levin did for some reason Harris’ Motion has not been filed. Second I think based on what the judge said on March 12, 2010 about how the dates he was setting that day, would be subject to change for multiple reasons with the fact it can take up to 3-5 years in Texas to have a suit go to trial that the Court will grant the Motion for Continuance. THIRD AND FINALLY WE ARE NOT PUTTING UP THE EXHIBITS FILED WITH THE TMZ-LEVIN MOTION FOR SUMMARY JUDGMENT BECAUSE ALTHOUGH SOME OF THE PAPERWORK ATTACHED IS NOT MARKED AS CONFIDENTIAL THOSE PAPERS CONTAIN VIRGIE ARTHUR’S LIST OF MEDICATION AND I BELIEVE ALSO HER PERSONAL DOCTORS NAME NOT JUST THE EXPERT ANY LIST OF ANYONE’S PERSONAL INFORMATION IS JUST NOT GOING TO GO UP ON THIS SITE SO YOU CAN BROWSE TOPIX TO SEE WHO BUYS THAT AND PUTS IT UP, BUT DON’T EXPECT TO SEE IT HERE. I would not wish for anyone to go through what I did because of an “accident” of filing.

Be sure to participate in our MEMBERS ONLY FORUMS, get the most out of the site by learning your way around in the forums where you can safely discuss things you do not want to see copied and pasted on another site.

©Rose Turner
August 2, 2010
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