Opinion issued August 29, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00292-CV
———————————
CHRISTUS HEALTH GULF COAST (AS AN ENTITY, D/B/A CHRISTUS
ST. CATHERINE HOSPITAL, AND FORMERLY D/B/A CHRISTUS ST.
JOSEPH HOSPITAL), Appellant
V.
LINDA G. CARSWELL, Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Case No. 2005-36179
OPINION
Linda G. Carswell sued CHRISTUS Health Gulf Coast (as an entity, d/b/a
CHRISTUS St. Catherine Hospital and formerly d/b/a CHRISTUS St. Joseph
Hospital) (“Christus”) for negligence after her husband, Jerry Carswell, died at
CHRISTUS St. Catherine Hospital (“St. Catherine”) in January 2004. Carswell
also asserted claims for post-mortem fraud, breach of fiduciary duty, and
negligence (“the post-mortem claims”) concerning Christus’s attempt to obtain her
consent to an autopsy. Following trial beginning on August 11, 2010, a jury found
in favor of Christus on Carswell’s medical negligence claims, and Carswell does
not appeal the adverse jury verdict on these claims.
The jury found in favor of Carswell on the post-mortem claims, awarding
her $1,000,000 for mental anguish and $1,000,000 in exemplary damages, which
the trial court reduced to $750,000 pursuant to the statutory cap on exemplary
damages. In four issues, Christus contends that: (1) the trial court erred in
entering judgment on Carswell’s post-mortem fraud claim because the jury’s
finding was not supported by legally or factually sufficient evidence and because
the claim was an improperly recast health care liability claim; (2) the trial court
cannot enter judgment in favor of Carswell on her post-mortem breach of fiduciary
duty and negligence claims because the jury’s findings on those claims are not
supported by legally and factually sufficient evidence; (3) the trial court used the
incorrect date to start calculating the amount of prejudgment interest to which
Carswell is entitled; and (4) the trial court erred in imposing sanctions against
Christus.
2
We vacate the trial court’s award of $250,000 in monetary sanctions against
Christus. We also modify the award of prejudgment interest and affirm the
judgment of the trial court as modified.
Background
A. Factual Background
Jerry Carswell, a sixty-one-year-old man suffering from severe right-side
pain, was admitted to St. Catherine on January 19, 2004. Physicians subsequently
diagnosed Jerry with kidney stones and discovered a small mass on his right
kidney. To aid with the pain, Dr. Paul Cook, Jerry’s attending physician,
prescribed several different narcotics, such as morphine and Lortab, during the
course of Jerry’s stay at St. Catherine. These were discontinued on January 21,
however, because Jerry was experiencing mental confusion, and his physician, Dr.
Cook, was concerned about creatinine levels showing Jerry had 50% kidney
function. Jerry was scheduled to be discharged from St. Catherine on January 22
so that an outpatient MRI could be done for further diagnosis of the renal mass.
Around 3:00 a.m. on January 22, 2004, in response to Jerry’s report of severe pain,
Dr. Christine Pramudji, who was on call for Dr. Cook, authorized the
administration of up to 75 mg of Demerol every three hours and 25 mg of
Phenergan every four hours, as needed.
3
Registered Nurse Maria Corral testified that she administered 75 mg of
Demerol and 25 mg of Phenergan to Jerry around 3:30 a.m. and observed him for
approximately fifteen minutes after administering the medications. Licensed
Vocational Nurse Angela DeLucia testified that Jerry was sleeping when she
checked on him around 4:00 a.m., and DeLucia observed no signs of respiratory
distress at that time. However, Rhonda Edwards, a phlebotomist, testified that De
Lucia and Corral left Jerry’s room with a syringe at around 5:00 a.m. Corral told
Edwards that she could finish her other rounds because Corral had just given pain
medication to Jerry. Around 5:15 a.m., when Edwards returned to Jerry’s room for
a routine blood draw, she discovered him lying across the foot of his hospital bed
and thought he was dead.
Edwards and Corral called for a “Code Blue,” and the Code team, including
nightshift charge nurse Lee Ann Lightfoot, attempted to resuscitate Jerry. During
the team’s efforts, Dr. Diana Fite, the emergency room physician leading the team,
requested that Edwards draw blood from Jerry to test for cardiac enzyme levels. 1
The Code team was ultimately unable to resuscitate Jerry, and he was pronounced
dead at 5:38 a.m. Lightfoot called Linda Carswell and her son, Jordan, and asked
them to come to St. Catherine.
1
Edwards testified that she gave these blood samples to a courier from St. Joseph
Hospital to be tested during Jerry’s autopsy.
4
Because the cause of Jerry’s sudden death was not readily apparent, Dr.
Pramudji, who came to St. Catherine during the Code, ordered a “complete”
autopsy around 6:00 a.m. Dr. Pramudji had never ordered an autopsy before, and
she asked Lightfoot what she needed to do. Lightfoot responded that all Dr.
Pramudji needed to do was write “order complete autopsy” on Jerry’s chart, and St.
Catherine “would take care of the rest.” Dr. Pramudji testified, via video
deposition, that she ordered a complete autopsy “because [she] wanted a complete
investigation into what happened to [Jerry].” Because no one witnessed Jerry’s
death and his death was not explained, St. Catherine was obligated to contact the
Harris County Medical Examiner’s Office (“HCMEO”) and inform it of the
circumstances of Jerry’s death so it could determine if it wanted to conduct an
autopsy and an investigation.
Linda Carswell testified that when she arrived at St. Catherine, Dr. Pramudji
and Lightfoot told her and Jordan about Jerry’s death. Dr. Pramudji told Carswell
that Jerry had had pain in the night and that “she didn’t know what had happened,
but that he was dead.” Lightfoot then commented that Carswell could take comfort
in the fact that Jerry “died peacefully[, h]e died in his sleep.” Carswell asked
several times, “what happened,” but neither Lightfoot nor Dr. Pramudji said
anything. Lightfoot asked Carswell several times whether she wanted the tubes
5
removed from Jerry’s body, but Carswell replied that she wanted all of the tubes
left in and that she wanted all samples to accompany Jerry’s body for the autopsy.
Barbara Lazor, the director of acute care services, stopped by Jerry’s room
to speak with Carswell. According to Carswell, Lazor was the first person at St.
Catherine with whom she discussed an autopsy. Carswell told Lazor that she
wanted an autopsy performed and that she “wanted to know what was going on
because it didn’t all match.” Lazor replied that Dr. Pramudji had requested an
autopsy. Carswell initially assumed that the autopsy would be performed at St.
Catherine, and she told Lazor that she wanted the autopsy performed elsewhere,
such as at the HCMEO. Lazor responded that Carswell could have a private
autopsy done, but a private autopsy would be very expensive and, because Dr.
Pramudji had ordered an autopsy, Carswell should “just let the hospital do that.”
Lazor then stated that an autopsy by St. Catherine would be “the very same type of
autopsy as if you went to an independent autopsy.” Lazor told her that St.
Catherine would contact the HCMEO.
Lazor testified that she spoke with Carswell and offered her condolences,
but she denied having any further interaction with her and she denied discussing an
autopsy with her. Lazor testified that she had no involvement either with
contacting the HCMEO or with obtaining Carswell’s consent to the autopsy. Lazor
stated that the HCMEO had already been contacted by the time she arrived at St.
6
Catherine that morning and that nurses play no role in obtaining consent to an
autopsy from surviving family members.
Carswell testified that she next spoke with Patty Elam, the charge nurse on
the surgery/med floor for the dayshift, who had arrived at St. Catherine at 6:42
a.m. Elam went to Jerry’s room to express her sympathy to Carswell and said, “It
shouldn’t have happened.” Elam also stated, “I think I know what happened. But
I wasn’t here and I can’t talk about it.” She brought with her a document that
appeared to Carswell to be a release from liability. Carswell asked Elam whether
St. Catherine had called the HCMEO because she wanted that office to perform an
autopsy, and she told Elam that she was not signing the release document. Elam
said she brought the “wrong thing” for Carswell to sign. Carswell told her she
wanted an autopsy and to bring back the right document. Elam then told her that
the HCMEO did not accept the case and would not investigate because it had been
told that Jerry’s cause of death was “renal failure.”
Elam subsequently brought a “Consent for Postmortem Procedures” form
and asked Carswell to sign the form to document that she consented to allowing St.
Catherine to take care of Jerry’s autopsy. The form states:
Autopsy Permission: AUTOPSIES ARE ONLY TO BE DONE ON
PHYSICIAN’S ORDERS. Perform an autopsy upon the body of the
deceased in order to determine or attempt to determine the cause of
death or the progress of the disease of the deceased. I specifically
grant permission to such doctors, their assistants, and their designees
7
to remove, study, examine, test and retain for scientific purposes all
organs or tissues from the body, head, or extremities of the deceased.
Under this paragraph was a line stating “Complete autopsy” with boxes available
to check “Yes,” “No,” or “N/A” and a line stating “Limited autopsy” with boxes
available to check “Yes” or “No” and a line to “[s]pecify limitations/restrictions.”
Carswell checked the “Yes” box in the “Complete autopsy” section, and she wrote
“N/A” on the “specify limitations/restrictions” line for “Limited autopsy” because
she “didn’t mean to exclude or limit anything” from the autopsy.
The form admitted by the trial court also had the “No” box checked by
“Medical Examiner Case,” and the form listed a contact person—“Mathis”—and
stated the time, “0635.” 2 Carswell stated that she did not fill in any information
concerning the medical examiner’s office on the form. When she signed the form,
she was “mainly focusing on ‘complete autopsy’” because she “wanted to know
everything when [she] signed [the form].” 3 Carswell testified that no one from St.
Catherine explained the autopsy policies and procedures to her.
2
The top section of the form concerns organ and tissue donation. The form reflects
that Lightfoot contacted LifeGift and spoke with a coordinator at “0636.”
3
Jordan Carswell testified that he and Linda did not know what “complete autopsy”
meant, but they “assumed that it meant it would be exhaustive in figuring out what
happened. We assumed they had a specific thing they meant when they said
‘complete.’ We understood that would mean that they would be doing everything
they could to find the cause of death.”
8
Patty Elam testified that she was not involved with contacting the HCMEO.
She also stated that she did not have a conversation with Lightfoot about calling
the HCMEO, that she did not discuss contacting the HCMEO with anyone, and
that she did not discuss the phone call to HCMEO, specifically, or the autopsy,
generally, with Carswell. She testified that she had nothing to do with obtaining
Carswell’s signature on the consent form, that she did not discuss Jerry’s cause of
death with either Carswell or Jordan, and that she would not have said that Jerry’s
cause of death was renal failure.
Jordan Carswell testified that neither Dr. Pramudji nor Lightfoot told him
and his mother why Jerry had died, but Dr. Pramudji indicated that she was going
to order an autopsy. He stated that he and Linda both wanted the medical
examiner to be involved with the autopsy, because they knew that the medical
examiner was independent from the hospital, and they asked St. Catherine
personnel if they were calling the HCMEO. Jordan testified that Elam told them
that she was going to call the HCMEO. He stated that, at one point, he walked up
to the nurse’s station, waited for Elam to end a phone call, and asked her a second
time about the medical examiner. Elam told him that “she had contacted them, and
she said they were not interested in looking into it any further.” Jordan stated that
he did not know what, if anything, regarding Jerry’s death was told to the
9
HCMEO. When asked whether he had any reason to disbelieve what the nurses
said concerning the HCMEO, Jordan replied:
No. We were confused. We thought [the HCMEO] was going to be a
way for us to find out what happened. So we were confused and
disappointed about what she told us, that they weren’t going to look
into it; but I didn’t have any reason to doubt that she had talked to
them.
Jordan stated that the family wanted an “independent autopsy” because they “felt
like [they] weren’t getting a lot of answers at the hospital, and [they] wanted to
have somebody else look at it.” He further testified that there was limited
communication with St. Catherine personnel, and, as a result, the family “wanted
somebody who [they] thought might be more aggressive in finding out what had
happened.”
Lightfoot testified that she spoke with Dr. Pramudji about ordering an
autopsy. She also stated that she called the HCMEO concerning Jerry’s death,
contradicting her deposition testimony, in which she denied calling the HCMEO.
She acknowledged that, on the autopsy-consent form, she checked that the case
was not a “Medical Examiner Case” and she recorded the name of the person that
she spoke to at the HCMEO, “Mathis,” and the time that she called.4 Lightfoot
then testified to what she “would have communicated” to the HCMEO employee,
but she did not state what she actually said to the employee. She stated:
4
The only “Mathis” identified in the record is an employee of Christus, not the
HCMEO.
10
I would announce who I was and the hospital I was representing, the
name of the deceased, and a little summary about the deceased: his
age, date of admission, diagnosis, and series of events leading up to
the death. Then I would answer questions from the ME.
Lightfoot also stated that she “would review medications” that had been
prescribed, the circumstances of the death, and whether the death was unwitnessed,
unexpected, or unexplained. Dr. Pramudji was standing next to her when she
called, and she stated that she would have told the HCMEO about Dr. Pramudji’s
“preliminary view” concerning Jerry’s cause of death. Lightfoot did not tell the
HCMEO that Jerry’s cause of death was renal failure. There is no record that
Lightfoot reported that nurses administered Demerol and Phenergan to Jerry before
his death.
After obtaining Carswell’s consent to an autopsy, St. Catherine ultimately
sent Jerry’s body to an affiliated hospital, CHRISTUS St. Joseph Hospital (“St.
Joseph”), for the autopsy to be performed by a pathologist with SJ Associated
Pathologists, L.C. (“SJAP”), a pathology group that contracts with St. Joseph to
use their laboratory and morgue facilities. Carswell testified that, at the time she
signed the autopsy-consent form, she did not know that St. Joseph and St.
Catherine were affiliated.
Prior to transferring the body, Tham Hoang, a St. Catherine employee, took
a sample from one of Jerry’s blood draws that had been taken on the day that he
died—but not the Code Blue blood draw—and stored it in the laboratory freezer.
11
Hoang took this sample from the blood draw “in case the pathologist performing
the autopsy needed additional materials.” She averred that she informed a
pathologist at SJAP that she had taken this sample, but SJAP never requested the
sample, and Hoang forgot that it existed. Christus alleged that it did not discover
the existence of this sample until October 2007, when it asked Hoang about
policies concerning the destruction of laboratory samples and she remembered that
she had taken and stored this sample. 5 Christus informed Carswell about this
sample at a hearing in November 2007. This sample was allegedly destroyed
shortly before trial in August 2010.
SJAP assigned Dr. Jeffrey Terrel to perform Jerry’s autopsy. Dr. Terrel
testified that he is not a forensic pathologist. He further testified that his pathology
group is under a contract to work exclusively for St. Joseph’s and that the entities
have been in “partnership” since “the late 40s.” He himself has been working in
the “partnership” for thirty-three years. However, Dr. Terrel stated that neither St.
Catherine nor St. Joseph influences how he, or any other SJAP pathologist,
conducts an autopsy and that SJAP is independent from the hospitals. He stated
that all decisions made during the autopsy, such as which tissues to retain and
which tests to perform, were made solely at his discretion. Dr. Terrel had
5
Martha Rushing, St. Catherine’s Manager of Laboratory Services, averred that,
pursuant to St. Catherine policy, all blood samples in the laboratory are maintained
for seven days in a refrigerator before being discarded.
12
“everything [that he] needed in this case to perform a full and complete and
accurate autopsy.”
Although he has performed over 1,000 autopsies, Dr. Terrel testified that he
does not do toxicology drug screening as part of his “normal routine.” He stated
that he had the Code blood samples available, as well as blood from the body itself,
to perform toxicological tests, but he did not perform any such tests because he did
not think they were necessary in this case. He testified that he did not do so in this
case because, upon reviewing Jerry’s chart, he “didn’t see anything suggesting to
[him] that the dosages [of Demerol and Phenergan] were wrong or atypical.” Dr.
Terrel testified that if toxicology screenings had been performed on Jerry’s blood
or urine samples, the tests would have shown the concentration of drugs in Jerry’s
system around the time of his death.
Dr. Terrel testified that it is common for pathologists to retain tissue samples
for further study and investigation during an autopsy, and, occasionally, the
pathologist retains entire organs. He stated that this is done at the pathologist’s
sole discretion, and the pathologist generally does not report this retention to the
hospital. In this case, during the autopsy, Dr. Terrel retained approximately one-
third of Jerry’s heart tissue for further study.
Dr. Joye Carter, a former Harris County Medical Examiner, testified that Dr.
Terrel performed a “limited autopsy” and that a “complete autopsy” would have
13
included toxicology screenings, which is standard practice in the forensic autopsies
performed by medical examiners. She stated that the medical examiner’s office
exists “to protect and assist non-forensic institutions in determining what’s
happened to their patients.” She also testified generally concerning the procedures
for initiating an inquest by the medical examiner’s office, and she opined that the
HCMEO would have accepted this case for an autopsy if it had known about the
amount of Demerol and Phenergan administered to Jerry and the proximity of this
administration to his death. She further testified that medical-examiner personnel
are trained to elicit considerable information concerning the death when the
HCMEO receives a call and that the medical examiner should be called if the cause
of death cannot be determined. She stated that the HCMEO would have retained
all bodily fluids for proper testing, performed a drug screen, taken witness
statements, reviewed all medical records, and determined the cause and manner of
death.
Because of the confusion about Jerry’s death, on January 30, 2004, eight
days after Jerry’s death, Carswell prepared and hand-delivered a letter to the St.
Joseph Pathology Department requesting that it “retain or keep all of the autopsy
samples” because she “didn’t want anything thrown away.” Her letter stated:
The purpose of this correspondence is to request that all microscopic
sections and/or all tissue/fluid/physical samples and studies be
preserved following any diagnosis that may be made. I also require a
complete catalog of all equipment that was found inserted or attached
14
to my husband’s body as a result of procedures prescribed by his
physician during his hospital stay and any equipment used during
procedures administered as part of the emergency “code” called when
his body was found on January 22, 2004. . . . Please expedite the final
report on this autopsy.
Carswell did not request that work on the autopsy report cease. However, Dr.
Terrel testified that he stopped working on the autopsy because continued testing
of the retained tissues would destroy the tissues in violation of Carswell’s letter.
Dr. Terrel never completed the autopsy, nor did he give any other explanation for
his decision to terminate it.
Dr. Terrel’s final autopsy report, completed on February 11, 2004, listed the
following findings: (1) renal cell carcinoma on the right kidney; (2) “calculus” on
the left kidney; (3) “Pylorus: abscess with phlegmon formation, bacterial
colonization, and peritonitis, localized”; and (4) congestion in the right lung. After
reviewing the final autopsy report, Dr. Cook, Jerry’s attending physician, listed the
following as causes of death on the death certificate: (1) localized peritonitis;
(2) abscess and phlegmon gastric pylorus; and (3) right renal cell carcinoma. Dr.
Cook listed the manner of death as “natural.” Carswell testified that she contacted
Dr. Cook after she received the death certificate and she asked him how the listed
causes of death could have actually caused Jerry’s death. In response, Dr. Cook
“stumbled around and little bit and said, ‘Well, I don’t know. I mean, I just don’t
know. These are findings from the autopsy report.’”
15
B. Procedural Background
On June 7, 2005, Carswell sued Christus for medical malpractice. She
alleged that Christus employees were negligent in, among other things, failing to
properly evaluate Jerry’s condition before and after administering a large dose of
Demerol and Phenergan. In her third amended petition filed on January 5, 2007,
Carswell first asserted the post-mortem claims addressing the conduct of Christus
employees in obtaining her consent to the autopsy and the retention of Jerry’s heart
tissue. The post-mortem claims included claims for fraud, breach of fiduciary
duty, Deceptive Trade Practices Act violations, conversion and replevin,
intentional infliction of emotional distress, breach of contract and breach of
warranty, and civil conspiracy. Carswell’s tenth amended petition, her live petition
at the time of trial, asserted pre-mortem negligence, negligence per se, and gross
negligence claims regarding the administration of Demerol and Phenergan to Jerry
and the nurses’ subsequent monitoring of Jerry, post-mortem fraud, post-mortem
breach of fiduciary duty, and a claim for interference with the right of internment
regarding Christus’s retention of Jerry’s heart tissue.
In 2005, Carswell sent Christus requests for production seeking, among
other things, “[a]ll tissues, fluids, specimens, and/or slides containing tissues or
fluid in your possession concerning Jerry Carswell.”
16
In March 2006, Christus moved the trial court to allow it to inspect, sample,
and microscopically examine portions of Jerry’s heart tissue that had been
maintained by SJAP. Christus argued that its expert, Dr. Thomas Wheeler, had
visually inspected the heart tissue and “concluded that further microscopic tests
would be useful in evaluating potential causes of death.” Christus stated that, if the
court granted permission, “a very small sample of cardiac tissue will be taken and
examined microscopically,” and it did not anticipate that the procedure would
“destroy or materially alter the heart tissue.” On August 28, 2006, the trial court
denied this motion.
In his deposition in October 2006, Dr. Terrel testified that he had retained
Jerry’s entire heart during the autopsy. Although Christus vigorously disputes this
assertion, Carswell claimed that this was the first time that she learned that Jerry’s
entire heart had been retained and was not buried with him. Christus contends that
Carswell actually learned about the retention of Jerry’s heart tissue in March 2006
when Christus’s counsel called Carswell’s counsel and “specifically told him that
[the specimens retained by Dr. Terrel] included a portion of Mr. Carswell’s heart.”
In March 2006, Christus had also faxed Dr. Wheeler’s expert report to Carswell’s
counsel, in which he stated that the laboratory had retained portions of Jerry’s
heart. In December 2006, counsel for Christus accompanied Dr. Wheeler as he
conducted an ex parte inspection of Jerry’s heart tissue.
17
On February 16, 2007, Carswell moved to strike the testimony of Dr.
Wheeler and another defense expert, Dr. William Lowry, and to limit the testimony
of other expert witnesses “as part of the remedy for Christus’ spoliation of brain,
body, blood, and bodily fluid evidence, as well as for its bad-faith conduct in
diverting the Decedent’s body away from the [HCMEO] for autopsy.” Carswell
argued that Christus spoliated evidence by “misdirecting the autopsy away from
the Medical Examiner’s Office,” and, as a remedy, the trial court should preclude
Christus from “challenging the results of the autopsy report and using anyone else
other than Dr. Terrel[] to explain to the jury the autopsy and the findings.”
Carswell also argued that the court should strike the expert testimony as a
sanction because Christus violated the court’s August 28, 2006 order when Dr.
Wheeler and Christus’s counsel viewed the heart tissue at St. Joseph in December
2006. Carswell also argued that sanctions were warranted because, despite stating
that in its response to Carswell’s 2005 request for “[a]ll tissues, fluids, specimens,
and/or slides containing tissues or fluid in your possession concerning Jerry
Carswell” that it “will supplement,” Christus never provided such tissues, although
it “began to leak out—after a Court hearing denying further testing of alleged heart
tissue slides—that there may be a ‘whole heart belonging to Jerry Carswell
somewhere.’”
18
On October 9, 2007, the trial court denied Carswell’s motion to strike. The
trial court, however, included the following in the order:
After considering the circumstances surrounding the disappearance of
evidence and Defendant’s failure to timely provide the same to
Plaintiffs, the Court is of the opinion that Plaintiffs are hereby
permitted to present evidence of Defendant’s concealment,
destruction, and/or adulteration of evidence at trial as [a] sanction for
Defendant’s conduct and the costs of trial preparation incurred by
Plaintiffs as a direct result thereof.
On October 23, 2007, the trial court, at Christus’s request, issued the
following order clarifying its October 9, 2007 order:
Plaintiffs are hereby permitted to present evidence, if any, of
Defendants’ concealment, destruction, and/or adulteration of evidence
at trial. If Plaintiffs meet their burden of proof regarding Defendants’
concealment, destruction, and/or adulteration of evidence, the Court
will conduct an evidentiary hearing immediately after trial to
determine the appropriate amount of attorney’s fees available to
Plaintiffs, if any, as sanction for the offending conduct.
At a hearing on November 5, 2007, counsel for Christus revealed that St.
Catherine laboratory employee Tham Hoang had taken a sample from one of
Jerry’s blood draws—not the blood drawn during the Code Blue, which was
apparently destroyed seven days after Dr. Terrel performed Jerry’s autopsy,
pursuant to St. Joseph’s standard retention schedule—and stored it in the
laboratory freezer. This sample was allegedly not discovered until October 2007
when Christus asked Hoang about policies concerning destruction of laboratory
samples and she then remembered that she had taken this sample. The trial court
19
expressed its frustration with Christus’s conduct, and, in response to defense
counsel stating that he felt it was “an honest situation,” the court responded, “I
might have thought that back when we found the heart. I’m beginning to wonder
now after we find the blood.” When Christus’s counsel sought “further guidance”
regarding the situation, the trial court responded that it would “wait and see what
[Carswell’s counsel] has to file about that.”
Carswell subsequently moved for sanctions, requesting that the trial court
impose, among other sanctions, $600,000 in monetary sanctions, a spoliation
inference, and a limitation on Christus to “utilization of only the autopsy report,
death certificate and the expert testimony of the pathologist they utilized to
conduct the autopsy, Dr. Jeffrey Terrel, to testify regarding cause, manner, and
mechanism of death . . . .”
On March 13, 2008, the trial court granted Carswell’s motion for sanctions.
The trial court made the following findings and conclusions:
• Defendant Christus improperly concealed the heart tissue of
Jerry Carswell in a Christus pathology laboratory;
• Defendant Christus improperly concealed blood serum
belonging to Jerry Carswell under conditions rendering it
scientifically and evidentiarily unreliable;
• Through concealment of Jerry Carswell’s heart tissue and
blood, Defendant Christus failed to timely supplement its
response to Plaintiffs’ First Request for Production, Request
Number 17, in which Plaintiffs sought discovery of tissues,
20
fluids, specimens, and/or slides containing tissues or fluids
belonging to Jerry Carswell;
• By hiring Dr. Thomas Wheeler on or about December 8, 2006
to conduct a second ex parte inspection upon the heart tissue of
Jerry Carswell, Defendant Christus violated the Court’s August
2006 ruling denying Defendant’s Motion for Leave to inspect
Mr. Carswell’s heart tissue;
• Plaintiffs have been severely prejudiced by Defendant’s
improper concealment of critical physical evidence and ex parte
inspections of heart tissue because the Court finds that such
evidence, if fresh and properly preserved, could have been used
to determine the cause, manner, and mechanism of the death of
Jerry Carswell;
• The Court finds Defendant Christus’ dilatory behavior to be
(1) abusive to Plaintiffs, who have expended significant time
and monetary resources developing their theory of the case
without the benefit of spoliated heart and blood evidence, (2) in
violation of the rules of discovery, as well as (3) a waste of the
Court’s time and resources;
• The Court further finds that prior sanctions related to
Defendant’s conduct have been unsuccessful in securing
Defendant’s compliance with the rules of discovery.
The trial court then imposed the following sanctions on Christus: 6
• The Court hereby strikes any and all defense witnesses whose
testimony stems from or relies upon ex parte inspection(s) of
heart tissue belonging to Jerry Carswell;
• The Court hereby strikes any and all defense pleadings
indicating that Jerry Carswell’s death is cardiac-related;
6
These sanctions were imposed by the Honorable Elizabeth Ray. Her successor,
the Honorable Josefina Rendon, adopted the prior sanctions order on February 19,
2009. Judge Rendon was the judge for the trial, and, on January 10, 2011, she
denied Christus’s motion to vacate Judge Ray’s March 13, 2008 sanctions order
and her own February 19, 2009 order adopting that order.
21
• Defendant Christus is equitably estopped from disputing the
conclusions in Jerry Carswell’s autopsy report and death
certificate;
• Because the Court finds that Plaintiffs have been severely
prejudiced by Defendant Christus’ spoliation of heart tissue and
blood evidence, Plaintiffs are hereby entitled to a spoliation
inference and the corresponding presumption that such
evidence would have been unfavorable to Defendant Christus;
• Monetary sanctions in the amount of two hundred and fifty-
thousand dollars ($250,000.00) to be paid from Defendant
Christus to Plaintiffs within ten (10) days of the signing of this
order.
Christus sought mandamus relief from these sanctions in this Court. We denied
mandamus, holding that Christus failed to establish both a clear abuse of discretion
and a lack of an adequate appellate remedy. See In re Christus Health, 276 S.W.3d
708, 709 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding).
Trial began on August 11, 2010. At trial, Question Number One of the
written jury charge asked the jury whether “the negligence, if any, of CHRISTUS
St. Catherine Hospital’s nurses proximately cause the death of Jerry Carswell.”
The trial court included definitions of negligence, ordinary care, and proximate
cause, as well as an “unavoidable accident” instruction and a spoliation instruction.
The jury answered “no.” With regard to Carswell’s post-mortem claims, Question
Number Eight asked, “Did CHRISTUS St. Catherine Hospital commit fraud
against Linda Carswell in connection with obtaining Linda Carswell’s consent for
the autopsy to be performed on Jerry Carswell’s body?” The jury answered “yes.”
22
Question Number Nine asked whether a relationship of trust and confidence
existed between St. Catherine and Linda Carswell—the jury answered “yes”—and
Question Number Ten, which was conditioned on a “yes” answer to Question
Number Nine, asked, “Did CHRISTUS St. Catherine Hospital fail to comply with
its fiduciary duty to Linda Carswell in connection with obtaining Linda Carswell’s
consent for the autopsy to be performed on Jerry Carswell’s body?” The jury
answered “yes.” Question Number Eleven asked whether the negligence, if any, of
St. Catherine in connection with obtaining Linda Carswell’s consent for the
autopsy proximately caused injury to her. The jury answered “yes.” In response to
Question Number Twelve, which asked whether Christus, Dr. Terrel, or SJAP
interfered with Carswell’s right to possess and bury Jerry Carswell, the jury
answered “no.” The jury awarded Carswell $1,000,000 in compensatory damages
and $1,000,000 in exemplary damages as a result of Christus’s fraud.
The trial court entered an amended final judgment on March 29, 2011.
Carswell elected to recover on the jury’s finding of post-mortem fraud. The trial
court entered judgment that Carswell take nothing against Christus on her medical
negligence claim and interference with right of internment claim. The court also
entered judgment that Carswell recover $1,000,000 from Christus in actual
damages and $750,000 in exemplary damages, reduced from $1,000,000 pursuant
to Civil Practice and Remedies Code section 41.008(b), on her post-mortem fraud
23
claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.008(b) (Vernon Supp. 2012)
(limiting recovery of exemplary damages). The court awarded Carswell
$279,863.76 in prejudgment interest, specifically stating that interest accrued at the
rate of $136.99 per day and started accruing on the date Carswell initially filed her
original petition, June 7, 2005. The court also awarded postjudgment interests and
costs to Carswell, and it ordered the recovery of $267,890.02 in sanctions—which
included accrued interest after Christus deposited $250,000 into the registry of the
court—pursuant to the March 13, 2008, and February 19, 2009 sanctions orders.
Sufficiency of the Evidence
In its first issue, Christus contends that we should reverse the trial court’s
judgment on Carswell’s post-mortem fraud claim because the jury’s finding on this
claim is not supported by legally and factually sufficient evidence.
A. Standard of Review
When conducting a legal sufficiency review, we credit favorable evidence if
a reasonable fact-finder could do so and disregard contrary evidence unless a
reasonable fact-finder could not. See City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005); Brown v. Brown, 236 S.W.3d 343, 348 (Tex. App.—Houston [1st
Dist.] 2007, no pet.). We consider the evidence in the light most favorable to the
finding under review and we indulge every reasonable inference that would
support the finding. City of Keller, 168 S.W.3d at 822. We sustain a no-evidence
24
contention only if: (1) the record reveals a complete absence of evidence of a vital
fact; (2) the court is barred by rules of law or evidence from giving weight to the
only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital
fact is no more than a mere scintilla; or (4) the evidence conclusively establishes
the opposite of the vital fact. Id. at 810; Merrell Dow Pharms., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997).
In a factual sufficiency review, we consider and weigh all of the evidence.
See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Arias v.
Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet.
denied). When the appellant challenges a jury finding on an issue on which it did
not have the burden of proof at trial, we set aside the verdict only if the evidence
supporting the jury finding is so weak as to make the verdict clearly wrong and
manifestly unjust. See Cain, 709 S.W.2d at 176; Reliant Energy Servs., Inc. v.
Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 782 (Tex. App.—Houston
[1st Dist.] 2011, no pet.). The jury is the sole judge of the witnesses’ credibility;
and it may choose to believe one witness over another. See Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). We may not substitute our
judgment for that of the jury. Id. “Because it is the jury’s province to resolve
conflicting evidence, we must assume that jurors resolved all conflicts in
25
accordance with their verdict.” Figueroa v. Davis, 318 S.W.3d 53, 60 (Tex.
App.—Houston [1st Dist.] 2010, no pet.).
B. Post-Mortem Fraud Claim
Question Number Eight asked the jury whether “CHRISTUS St. Catherine
Hospital commit[ted] fraud against Linda Carswell in connection with obtaining
Linda Carswell’s consent for the autopsy to be performed on Jerry Carswell’s
body[.]” Carswell alleged that Christus employees made three fraudulent
misrepresentations to her that induced her to consent to the autopsy performed by
St. Joseph: (1) Patty Elam told her that the HCMEO would not accept the case and
would not perform an autopsy because it had been told by St. Catherine personnel
that Jerry’s cause of death was renal failure; (2) Barbara Lazor told her that an
autopsy performed by Christus would be “just like” and “the very same type of
autopsy” as an independent forensic autopsy; and (3) Lazor told her that the
autopsy would be a “complete” autopsy that would determine Jerry’s cause of
death.
To prevail on her post-mortem fraud claim, Carswell had to prove that:
(1) Christus made a material misrepresentation that was false; (2) Christus knew
the representation was false or made it recklessly as a positive assertion without
any knowledge of its truth; (3) Christus intended to induce Carswell to act upon the
representation; and (4) Carswell actually and justifiably relied upon the
26
representation and thereby suffered injury. See Ernst & Young, L.L.P. v. Pac. Mut.
Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001); Perez v. DNT Global Star, L.L.C.,
339 S.W.3d 692, 705 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
The Texas Supreme Court has defined “material” to mean that “a reasonable
person would attach importance to and would be induced to act on the information
in determining his choice of actions in the transaction in question.” Italian
Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex.
2011). A pure expression of opinion is not a representation of material fact and
thus cannot be the basis of a fraud claim. Id. at 337–38 (citing Prudential Ins. Co.
of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 163 (Tex. 1995)). Whether a
statement is an actionable statement of fact or an opinion depends on the
circumstances in which the statement is made, and “[s]pecial or one-sided
knowledge may help lead to the conclusion that a statement is one of fact, not
opinion.” Id. at 338 (citing Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 276
(Tex. 1995)). Thus, “‘[s]uperior knowledge by one party may also provide the
occasion for fraud.’” Id. (quoting Faircloth, 898 S.W.2d at 277).
“[A] defendant who acts with knowledge that a result will follow is
considered to intend the result.” Ernst & Young, 51 S.W.3d at 579. To determine
whether reliance on a misrepresentation is justifiable, we must “inquire whether,
‘given a fraud plaintiff’s individual characteristics, abilities, and appreciation of
27
facts and circumstances at or before the time of the alleged fraud[,] it is extremely
unlikely that there is actual reliance on the plaintiff’s part.’” Grant Thornton
L.L.P. v. Prospect High Income Fund, 314 S.W.3d 913, 923 (Tex. 2010) (quoting
Haralson v. E. F. Hutton Grp., Inc., 919 F.2d 1014, 1026 (5th Cir. 1990)). “A
person may not justifiably rely on a representation if there are ‘red flags’ indicating
such reliance is unwarranted.” Id. (quoting Lewis v. Bank of Am. N.A., 343 F.3d
540, 546 (5th Cir. 2003)).
Here, Carswell testified that after she arrived at St. Catherine and learned
that Jerry had passed away, she had a conversation with Patty Elam, the charge
nurse for the day shift, who had also just arrived at the hospital. During the course
of this conversation, Carswell asked Elam whether St. Catherine personnel had
called the HCMEO because she wanted the HCMEO to conduct a forensic autopsy.
Elam responded that the HCMEO had been notified of Jerry’s death, but it would
not accept the case and it would not perform an autopsy because it had been told
by St. Catherine that Jerry’s cause of death was renal failure. Elam denied making
this statement to Carswell, and she testified that she played no role in contacting
the HCMEO and that she did not discuss the HCMEO, the autopsy-consent form,
or Jerry’s cause of death with Carswell. She testified that she did not discuss
Jerry’s cause of death with anyone else, including other nurses, and she would not
have said that he died of renal failure.
28
Furthermore, although Lightfoot testified concerning what she “would have
told” the HCMEO when she called, she did not testify regarding what she actually
told the contact employee concerning the circumstances surrounding Jerry’s death.
Lightfoot acknowledged that, based on the times reflected on the autopsy consent
form, her conversation with the HCMEO could have lasted only about one minute.
There is no indication of what, if anything, the HCMEO was told about the
circumstances surrounding Jerry’s death. Lightfoot testified, on cross-
examination, that she was unaware of St. Catherine’s policy concerning the
handling of unexplained and unwitnessed deaths and that she was unaware of St.
Catherine’s autopsy policy because she never coordinated autopsies. Lightfoot
denied telling the HCMEO employee that Jerry died of renal failure.
Despite Elam’s contradictory testimony, Carswell’s testimony is some
evidence that Elam made the representation at issue. See City of Keller, 168
S.W.3d at 822 (holding that, in legal sufficiency review, we consider evidence in
light most favorable to finding under review); Golden Eagle Archery, 116 S.W.3d
at 761 (holding that jury is sole judge of credibility of witnesses and weight to be
given to their testimony). Moreover, the evidence supporting the jury’s implied
finding that Elam made the representation at issue is not so weak that the jury’s
verdict is clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176.
29
1. Materiality
Linda and Jordan Carswell both repeatedly testified that they wanted the
HCMEO to investigate and conduct an autopsy because they knew that the
HCMEO was a completely independent entity from St. Catherine and they felt that
the HCMEO would be “more aggressive” in determining Jerry’s cause of death.
They also both testified that they repeatedly told St. Catherine personnel that they
wanted someone to contact the HCMEO and that they repeatedly asked St.
Catherine nurses whether the HCMEO had been contacted. St. Catherine
personnel thus knew that the Carswells wanted an independent pathology group,
specifically, the HCMEO, to perform Jerry’s autopsy. Moreover, as Dr. Carter
testified, the HCMEO exists, in part, to “protect and assist” non-forensic
institutions like hospitals in determining the cause and manner of an unexplained
death. She agreed that hospitals are required to report unexplained and
unwitnessed deaths to the HCMEO, and that, upon eliciting information about the
death, the HCMEO determines whether it will investigate and conduct an autopsy. 7
7
Code of Criminal Procedure article 49.25 enumerates the duties to be performed
by medical examiners, and section 6(a)(8) states:
Any medical examiner, or his duly authorized deputy, shall be
authorized, and it shall be his duty, to hold inquests with or without a
jury within his county, in the following cases: When a person dies
who has been attended immediately preceding his death by a duly
licensed and practicing physician or physicians, and such physician
or physicians are not certain as to the cause of death and are unable
to certify with certainty the cause of death as required by Section
30
The Carswells expressed a desire to have the HCMEO perform the autopsy; thus, a
“reasonable person would attach importance to” Elam’s representation that the
HCMEO would not accept the case because it had been told that Jerry died of renal
failure and “would be induced to act on” this representation in ultimately allowing
St. Catherine to arrange the autopsy itself. See Italian Cowboy, 341 S.W.3d at 337
(defining materiality).
2. Falsity
Lee Ann Lightfoot testified that she called the HCMEO to inform it of
Jerry’s death. Although she did not explicitly testify regarding what she actually
told the HCMEO contact person—she instead testified regarding what she “would
have” told the HCMEO employee—and she could not remember if she told the
HCMEO that Jerry died of natural causes, she unequivocally testified that she did
not tell the HCMEO that Jerry’s cause of death was renal failure. Lightfoot also
agreed that any conversation with the HCMEO would have lasted about a minute.
There is no record of what, if anything, the HCMEO was told about the
circumstances surrounding Jerry’s death, and the HCMEO did not have a record of
193.004, Health and Safety Code. In case of such uncertainty the
attending physician or physicians, or the superintendent or general
manager of the hospital or institution in which the deceased shall
have died, shall so report to the medical examiner of the county in
which the death occurred, and request an inquest.
TEX. CODE CRIM. PROC. ANN. art. 49.25, § 6(a)(8) (Vernon Supp. 2012).
31
receiving a call from St. Catherine concerning Jerry’s death. Therefore, there is
some evidence that any representation that HCMEO officials were told that Jerry
died of renal failure and that the office declined to accept the case on that basis is
false. See Ernst & Young, 51 S.W.3d at 577 (requiring, for fraud claim, that
defendant make material representation that was false).
3. Knowledge of Falsity or Reckless Disregard for the Truth
Concerning whether Elam made the representation knowing that it was false
or made it recklessly without regard for whether it was true or false, although Elam
denied making the statement at all, she also repeatedly testified that she was not
involved in contacting the HCMEO and took no part in that phone call, that she did
not know what had been told to the HCMEO, that she did not discuss Jerry
Carswell’s death with any of the other St. Catherine nurses, and that she did not
know the cause of Jerry’s death. The unrebutted testimony is that Lightfoot called
the HCMEO and that Elam and Lightfoot did not discuss Lightfoot’s conversation
with the HCMEO official. Therefore, Elam did not know what, if anything,
Lightfoot had told the HCMEO about the circumstances surrounding Jerry’s death
and his apparent cause of death. Furthermore, Lightfoot did not testify concerning
what she actually said to the HCMEO, but she did unequivocally testify that she
did not tell the HCMEO that Jerry had died of renal failure. Because there is some
evidence that Elam was not involved with contacting the HCMEO and had no
32
knowledge of what was told to the HCMEO, but that she represented to Linda
Carswell that the HCMEO had declined to take the case because it had been told
that Jerry died of renal failure, we conclude that some evidence supports the jury’s
implicit conclusion that Elam made the representation to Carswell with, at least,
reckless disregard for the truth of the representation.
4. Intent to Induce Action
Carswell contends that, in making the misrepresentation concerning what St.
Catherine told the HCMEO, Christus intended to induce her into consenting to St.
Catherine’s handling of Jerry’s autopsy. The trial court admitted a document
entitled “Authorization for Autopsy,” created by the CHRISTUS St. Catherine
Hospital Patient Care Services division. This document states, “It is the policy of
CHRISTUS St. Catherine that consent for autopsy must be obtained from the
patient’s next of kin.” Carswell testified that Elam, who made the representation
concerning what had been told to the HCMEO, was also involved with obtaining
her signature on the autopsy-consent form.
St. Catherine nursing personnel knew that Carswell wanted the HCMEO to
perform the autopsy, and they knew that they needed her consent for St. Catherine
to handle the autopsy. It is a reasonable inference that, upon telling Carswell that
the HCMEO would not investigate and would not perform an autopsy, Carswell
would then agree to let St. Catherine complete the autopsy, which would not
33
actually be a forensic autopsy. See City of Keller, 168 S.W.3d at 822 (holding, in
legal sufficiency review, that we indulge every reasonable inference that supports
jury’s finding). The jury could have reasonably concluded that Christus knew that
Carswell would consent to allowing St. Catherine to perform an autopsy if she
were told by St. Catherine personnel that the HCMEO declined the case. Thus,
there is evidence that Christus intended to induce Carswell to consent to the
autopsy by making misrepresentations concerning why the HCMEO declined the
case. See Ernst & Young, 51 S.W.3d at 579 (“[A] defendant who acts with
knowledge that a result will follow is considered to intend the result.”).
5. Reliance and Injury
The final element of a fraud claim requires Carswell to prove that she
actually and justifiably relied on the misrepresentation and thereby suffered
injury. 8 See id. at 577. When determining whether reliance is justifiable, we
consider “a fraud plaintiff’s individual characteristics, abilities, and appreciation of
facts and circumstances at or before the time of the alleged fraud.” Grant
Thornton, 314 S.W.3d at 923; see also Koral Indus. v. Sec.-Conn. Life Ins. Co.,
802 S.W.2d 650, 651 (Tex. 1990) (per curiam) (“Failure to use due diligence to
suspect or discover someone’s fraud will not act to bar the defense of fraud to the
8
As Carswell points out, Christus does not challenge the sufficiency of the evidence
concerning Carswell’s mental anguish damages. We therefore do not address the
testimony from Carswell and Dr. Kristin Kassaw, Carswell’s psychiatrist,
concerning her symptoms of mental anguish.
34
contract.”); Summers v. WellTech, Inc., 935 S.W.2d 228, 234 (Tex. App.—
Houston [1st Dist.] 1996, no writ) (“It is not a defense to fraud that the defrauded
person might have discovered the truth by the exercise of ordinary care.”).
Here, at the time Christus made its representations, Carswell had just been
informed that her husband had passed away unexpectedly. The St. Catherine
nursing staff had greater knowledge of the policies and procedures surrounding the
contacting of the HCMEO and the obtaining of consent for St. Catherine to do the
autopsy. Carswell, who was not involved with the phone call to the HCMEO, if
any such phone call was made, had no knowledge regarding what was said to the
HCMEO about how Jerry died. Moreover, the relevant time for determining
whether the reliance was justifiable is the time the plaintiff actually relies on the
representation, which, in this case, would be when Carswell signed the autopsy
consent form. Therefore, the facts that she later wrote a letter to Dr. Terrel asking
him to retain all autopsy specimens and that she later discovered that St. Joseph,
where Dr. Terrel performed the autopsy, is a Christus-affiliated hospital are
irrelevant to the analysis of whether her reliance was justifiable. We conclude that,
based on the surrounding circmstances, some evidence supports the jury’s implicit
conclusion that Carswell’s reliance on the representation was justifiable. See
Grant Thornton, 314 S.W.3d at 923.
35
Christus asserts that, to establish that its misrepresentations caused
Carswell’s mental anguish damages allegedly suffered as a result of the continued
“uncertainty” over Jerry’s cause of death, Carswell had to prove that an autopsy
performed by the HCMEO or another independent pathologist would have
discovered the “true” cause of death, that is, that the HCMEO, unlike Dr. Terrel,
would have performed toxicological screenings to establish an adverse reaction to
Demerol and Phenergan as the sole cause of death.
Whether an autopsy performed by the HCMEO would have established that
Jerry died of an adverse drug reaction is irrelevant to the issue of causation in this
fraud case. Carswell testified that she wanted an independent entity, such as the
HCMEO, to perform the autopsy, but as a result of Christus’s misrepresentation
that the HCMEO had declined the case because it had been told that Jerry died of
renal failure, Carswell agreed to allow Christus to handle the autopsy. Dr. Joye
Carter, an expert witness for Carswell who had extensive experience as a medical
examiner, including past experience as the chief Harris County Medical Examiner,
testified that, if HCMEO officials had been properly informed about the
circumstances surrounding Jerry’s death, i.e., that he received large doses of
Demerol and Phenergan within two hours of his death, the HCMEO would have
accepted the case and would have run toxicology tests on Jerry’s blood.
36
Regardless of what results the toxicology tests would have shown, the
HCMEO, an independent entity with no connection to any Christus hospitals, was
required by law to be alerted to the mysterious circumstances of Jerry’s death,
could not have refused to take the case if the circumstances were reported
accurately to it, would have employed a forensic pathologist to conduct the
autopsy, and would have been able to confirm or deny whether the medications
played a role in Jerry’s death. This is what Carswell wanted: an entity with no
doubts about its independence from the treating hospital to tell her what had
happened to her husband. Because Carswell was unequivocally told by St.
Catherine employees that the HCMEO would not accept the case and perform an
autopsy, she herself never sought a second opinion from the HCMEO, nor could
she have done so, leading to her continued uncertainty regarding Jerry’s cause of
death and her continued mental anguish.
Dr. Kristin Kassaw, Carswell’s psychiatrist, testified that Carswell, who was
suffering from “complicated bereavement,” was referred to Kassaw by her
psychotherapist, who felt that medication was appropriate. Dr. Kassaw testified
that Jerry’s death was “completely unexpected” to Carswell, and she was left with
“the question of ‘why,’” which was exacerbated by learning, in the litigation
process, “that people hadn’t been completely honest and forthcoming with her at
the time of [Jerry’s] death.” Dr. Kassaw stated that “understanding what happened
37
is an important part” of the grieving process and that “to have unanswered
questions in your mind about what happened to your loved one leaves the grieving
process open.” Dr. Kassaw testified that it would be difficult to “tease out” the
particular stressor that caused Carswell’s anxiety and depression, but she still
opined that, to a reasonable degree of medical certainty, Carswell suffered mental
anguish as a result of Jerry’s death “and the subsequent events” that contributed to
her diagnosed anxiety and depression. We conclude that some evidence supports
the jury’s finding that Christus’s misrepresentation caused Carswell to suffer
injury. 9 See Ernst & Young, 51 S.W.3d at 577.
We hold that sufficient evidence supports the jury’s finding that Christus
committed fraud to induce Carswell into consenting to an autopsy, and, therefore,
the trial court appropriately entered judgment in favor of Carswell on her post-
9
Carswell alleged three specific fraudulent misrepresentations: (1) Elam’s
representation concerning what had been told to the HCMEO; (2) Lazor’s
representation that an autopsy conducted at St. Joseph would be “just like” and the
“very same type of autopsy” as an independent forensic autopsy; and (3) Lazor’s
representation that the autopsy conducted by St. Joseph would be a “complete”
autopsy that would determine Jerry’s cause of death. The jury charge did not ask
the jury to determine whether each specific statement constituted a fraudulent
misrepresentation. Instead, it asked, “Did CHRISTUS St. Catherine Hospital
commit fraud against Linda Carswell in connection with obtaining Linda
Carswell’s consent for the autopsy to be performed on Jerry Carswell’s body?”
Because we conclude that sufficient evidence supports the conclusion that the first
statement—Elam’s representation—constitutes a fraudulent misrepresentation, we
need not analyze whether sufficient evidence supports the finding that the other
two statements also constitute fraudulent misrepresentations.
38
mortem fraud claim. 10 See City of Keller, 168 S.W.3d at 810, 822, 827; Cain, 709
S.W.2d at 176.
Recast Health Care Liability Claim
Christus also contends, in its first issue, that Carswell cannot recover on her
post-mortem fraud claim because it is an improperly recast health care liability
claim that is subject to the procedural requirements of Civil Practice and Remedies
Code Chapter 74, such as a two-year statute of limitations and the applicable cap
on damages.
A health care liability claim must be filed within two years from “the
occurrence of the breach or tort or from the date the medical or health care
treatment that is the subject of the claim or the hospitalization for which the claim
is made is completed.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a) (Vernon
2011). The Civil Practice and Remedies Code defines a “health care liability
claim” as
a cause of action against a health care provider or physician for
treatment, lack of treatment, or other claimed departure from accepted
standards of medical care, or health care, or safety or professional or
administrative services directly related to health care, which
proximately results in injury to or death of a claimant, whether the
claimant’s claim or cause of action sounds in tort or contract.
10
Because we conclude that sufficient evidence supports the jury’s finding on
Carswell’s post-mortem fraud claim, the claim on which she elected to recover, we
need not address Christus’s second issue concerning whether the judgment of the
trial court can be affirmed on Carswell’s post-mortem breach of fiduciary duty
claim or her post-mortem negligence claim.
39
Id. § 74.001(a)(13) (Vernon Supp. 2012). “Health care” is defined 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.” Id. § 74.001(a)(10). The Civil Practice
and Remedies Code defines “medical care” as “any act defined as practicing
medicine under Section 151.002, Occupations Code, performed or furnished, or
which should have been performed, by one licensed to practice medicine in this
state for, to, or on behalf of a patient during the patient’s care, treatment, or
confinement.” Id. § 74.001(a)(19).
Whether a claim constitutes a “health care liability claim” under Chapter 74
depends on the underlying nature of the claim, and “artful pleading” does not alter
that nature. Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010); see also
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 854 (Tex. 2005) (noting,
in holding that asserted causes of action constitute health care liability claims, that
“[a]ll of [Rubio’s] claims arise from acts or omissions that are inseparable from the
provision of health care” and that “the gravamen of Rubio’s complaint is the
alleged failure of Diversicare to implement adequate policies to care for, supervise,
and protect its residents who require special, medical care”); Garland Cmty. Hosp.
v. Rose, 156 S.W.3d 541, 544 (Tex. 2004) (“If the act or omission alleged in the
complaint is an inseparable part of the rendition of health care services, then the
40
claim is a health care liability claim.”). We focus on the “essence of the claims”
and consider “the alleged wrongful conduct and the duties allegedly breached.”
Tex. Cypress Creek Hosp., L.P. v. Hickman, 329 S.W.3d 209, 214 (Tex. App.—
Houston [14th Dist.] 2010, pet. denied). Courts generally characterize claims as
health care liability claims if the claims implicate standards of medical care. See
Buchanan v. O’Donnell, 340 S.W.3d 805, 810 (Tex. App.—San Antonio 2011, no
pet.); see also Pallares v. Magic Valley Elec. Coop., Inc., 267 S.W.3d 67, 71 (Tex.
App.—Corpus Christi 2008, pet. denied) (“[I]n considering whether a claim is a
health care liability claim, the court may consider whether proving the claim would
require specialized knowledge of a medical expert.”).
Christus argues that the gravamen of Carswell’s post-mortem claims is that
Christus “attempted to conceal the alleged cause of Mr. Carswell’s death by
improperly obtaining Mrs. Carswell’s informed consent to the autopsy on Mr.
Carswell . . . .” Christus cites several cases from the Texas Supreme Court and
various intermediate courts of appeals for the proposition that informed consent
claims are “health care liability claims” pursuant to Chapter 74 and, thus, are
subject to the procedural requirements, such as statute of limitations, prescribed by
that chapter. See, e.g., McKinley v. Stripling, 763 S.W.2d 407, 409 (Tex. 1989)
(“A cause of action for the failure of a doctor to fully inform a patient of the risks
of surgery is a negligence cause of action. Recovery is governed by the Medical
41
Liability and Insurance Improvement Act of Texas [Chapter 74].”); Theroux v.
Vick, 163 S.W.3d 111, 114 (Tex. App.—San Antonio 2005, pet. denied) (“The
representations Theroux alleges all have to do with whether Vick’s selection of the
surgical procedure and performance of it met the standard of care for doctors in
such circumstances and whether he adequately disclosed the risks of the surgical
procedure to her. These allegations are nothing more than Theroux’s attempt to
recast her malpractice claim as a fraud claim.”).
Christus also relies upon a memorandum opinion from the Dallas Court of
Appeals, Swanner v. Bowman, No. 05-02-00040-CV, 2002 WL 31478769 (Tex.
App.—Dallas Nov. 7, 2002, pet. denied) (mem. op.). In Swanner, the deceased
died after Bowman or a nurse at Bowman’s direction “injected [the deceased] with
a substance that caused his immediate death.” Id. at *1. The defendant-hospital
sent the deceased’s body to its own pathologist for an autopsy instead of to the
county medical examiner, as the family requested. Id. The family did not assert
any claims arising out of the hospital’s decision to send the body to its own
pathologist. Instead, the family alleged that the injection given to the deceased was
made without his consent or the consent of the family, and the family brought
causes of action for murder, civil conspiracy, intentional infliction of emotional
distress, wrongful death, and negligence. Id. at *1–2.
42
The Dallas Court of Appeals held that all of the family’s claims “revolve[d]
around the administration of a medication that was an inseparable part of
Bowman’s rendition of medical services.” Id. at *2. The court concluded that the
claims were “based on the breach of a standard of care applicable to a physician
because they deal with duties owed by a physician to a patient and deal with what
an ordinarily prudent physician would do under the same or similar
circumstances.” Id. The court also concluded that, although the family asserted a
“murder” cause of action against the defendants, their cause of action was actually
a wrongful-death claim, “which is included within the definition of a health care
liability claim.” Id. at *3.
The court reasoned that, regardless of how the family labeled their claim,
they had to establish that Bowman “deviated from the standard of care applicable
to the administration of the drug.” Id. Although the family cast their claim as an
intentional tort, because the “underlying nature of the claim is inseparable from a
physician’s rendition of medical services and treatment involving a departure from
accepted standards of medical care, health care, or safety,” the claim fell within the
purview of the Medical Liability and Insurance Improvement Act. Id. The court
further concluded that the family’s claims for intentional infliction of emotional
distress and civil conspiracy also fell within the Act because they “[arose] from the
43
same facts alleged as the intentional wrongful death claim and [sought] the same
damages.” Id. at *4.
In contrast, Carswell relies upon two memorandum decisions from the San
Antonio and Fort Worth Courts of Appeals, Salazar v. Dickey, No. 04-08-00022-
CV, 2010 WL 307852 (Tex. App.—San Antonio Jan. 27, 2010, pet. denied) (mem.
op.), and Hare v. Graham, No. 2-07-118-CV, 2007 WL 3037708 (Tex. App.—Fort
Worth Oct. 18, 2007, pet. denied) (mem. op.), respectively, for the proposition that
her post-mortem fraud claim does not constitute a health care liability claim. In
Hare, the plaintiff alleged that the defendant-doctor performed an unauthorized
autopsy on her husband without her permission and that medical center employees
“misled and intentionally deceived her regarding consent for an autopsy.” 2007
WL 303778, at *1.
In determining that the plaintiff’s claim did not constitute a health care
liability claim, the Fort Worth Court of Appeals in Hare analyzed the statutory
definitions of “health care liability claim,” “health care,” and “medical care” and
noted that the definitions of “health care” and “medical care” both end with the
phrase “the patient’s care, treatment, or confinement.” Id. at *3; see also Salazar,
2010 WL 307852, at *4 (adopting Fort Worth court’s reasoning and holding that
plaintiff’s claims that doctor fraudulently signed death certificate without being
present at death or performing autopsy did not constitute health care liability
44
claim). The court noted that Health and Safety Code section 313.002(8), part of
the Consent to Medical Treatment Act, defined “patient” as “a person who is
admitted to a hospital,” which, according to the court, “clearly implies that a
person must be alive in order to be a ‘patient.’” Hare, 2007 WL 303778, at *3;
Salazar, 2010 WL 307852, at *4. The court acknowledged its holding from a
previous case that “a body was not a patient, nor was an autopsy a form of medical
treatment” and reasoned that “the idea that a cadaver can be a ‘patient’ is, on its
face, illogical.” Hare, 2007 WL 303778, at *3 (citing Putthoff v. Ancrum, 934
S.W.2d 164, 171 (Tex. App.—Fort Worth 1996, writ denied)).
The Fort Worth court ultimately held that “a dead body is not a patient” and
it concluded that “a body does not receive ‘medical care, treatment, or
confinement’ after death.” Id. The plaintiff’s claim that the doctor performed an
unauthorized autopsy on her husband and that medical center employees “misled
and intentionally deceived her regarding consent for an autopsy” did not constitute
a “health care liability claim” pursuant to Chapter 74. Id.; see also Salazar, 2010
WL 307852, at *4 (“Because Salazar’s father was already dead at the time Dr.
Ross allegedly departed from acceptable standards and practices, his father could
not be a ‘patient.’ Nor could his father have received medical care, treatment, or
confinement after his death.”).
45
We follow the reasoning of Hare and Salazar and conclude that Carswell’s
post-mortem fraud claim is not a health care liability claim subject to Chapter 74.
The gravamen of Carswell’s post-mortem fraud claim does not concern the
provision of health care to Jerry Carswell. Rather, the gravamen of the claim is
that Christus employees, through their misrepresentations, fraudulently induced
Carswell to consent to an autopsy performed by St. Joseph, the facility of
Christus’s choice, instead of an autopsy performed by the HCMEO or another
independent pathologist. Cf. Yamada, 335 S.W.3d at 193–94 (“When the
underlying facts are encompassed by provisions of the TMLA in regard to a
defendant, then all claims against that defendant based on those facts must be
brought as health care liability claims.”). This claim does not implicate the
standard of care in performing medical services to a patient, and the act
complained of is not “an inseparable part of the rendition of medical services.” See
Diversicare, 185 S.W.3d at 848; Garland Cmty. Hosp., 156 S.W.3d at 544;
Buchanan, 340 S.W.3d at 810.
We overrule Christus’s first issue.
Calculation of Prejudgment Interest
In its third issue, Christus contends that the trial court erroneously calculated
the amount of prejudgment interest to which Carswell was entitled. Christus
contends that the trial court should have calculated prejudgment interest from
46
January 5, 2007, the date on which Carswell filed her post-mortem claims—the
claims on which she prevailed at trial—instead of from June 7, 2005, the date on
which Carswell filed her health care liability claim, on which she did not prevail at
trial.
Texas Finance Code section 304.104 provides:
[P]rejudgment interest accrues on the amount of a judgment during
the period beginning on the earlier of the 180th day after the date the
defendant receives written notice of a claim or the date the suit is filed
and ending on the day preceding the date judgment is rendered.
Prejudgment interest is computed as simple interest and does not
compound.
TEX. FIN. CODE ANN. § 304.104 (Vernon 2006). Prejudgment interest is
“compensation allowed by law as additional damages for lost use of the money due
as damages during the lapse of time between the accrual of the claim and the date
of judgment.” Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962
S.W.2d 507, 528 (Tex. 1998). Awarding prejudgment interest serves two
purposes: (1) encouraging settlements and (2) expediting settlements and trials by
removing incentives for defendants to delay without creating such incentives for
plaintiffs. Id. at 529. Prejudgment interest is awarded to fully compensate the
injured party, not to punish the defendant. Brainard v. Trinity Universal Ins. Co.,
216 S.W.3d 809, 812 (Tex. 2006); see also Citizens Nat’l Bank v. Allen Rae Invs.,
Inc., 142 S.W.3d 459, 486 (Tex. App.—Fort Worth 2004, no pet.) (“An award of
prejudgment interest advances two ends: 1) achieving full compensation to
47
plaintiffs; and 2) expediting both settlements and trials.”). We review a trial
court’s decision concerning the award of prejudgment interest for an abuse of
discretion, giving limited deference to the trial court’s application of the law to the
facts. Morales v. Morales, 98 S.W.3d 343, 348 (Tex. App.—Corpus Christi 2003,
pet. denied) (quoting Marsh v. Marsh, 949 S.W.2d 734, 744 (Tex. App.—Houston
[14th Dist.] 1997, no pet.)); see also Toshiba Machine Co. v. Am. SPM Flow
Control, Inc., 180 S.W.3d 761, 785 (Tex. App.—Fort Worth 2005, pet. granted,
judgm’t vacated w.r.m.) (“The abuse of discretion standard applies to the trial
court’s factual findings as they relate to prejudgment interest; but the de novo
standard applies to the trial court’s application of the law to the facts.”).
The Fourteenth Court of Appeals has recently concluded that when a
plaintiff amends its pleadings to assert a claim for which it is ultimately entitled to
prejudgment interest, prejudgment interest on that claim begins to accrue on the
date of the amended petition raising that claim instead of on the date the plaintiff
originally filed suit. See I-10 Colony, Inc. v. Lee, 393 S.W.3d 467, 480 (Tex.
App.—Houston [14th Dist.] 2012, pet. denied); Tex Star Motors, Inc. v. Regal Fin.
Co., No. 14-05-00215-CV, 2012 WL 58945, at *13 (Tex. App.—Houston [14th
Dist.] Jan. 10, 2012, no pet.).
In Tex Star Motors, the plaintiff, Regal Finance Co., originally filed suit on
August 15, 2002, and asserted a claim for breach of a purchase agreement. 2012
48
WL 58945, at *12. Three months later, on November 15, 2002, Regal amended its
petition to assert a claim for breach of an agreement to provide administrative and
collection services, the claim on which it ultimately prevailed at trial. Id. The trial
court determined that prejudgment interest began accruing on August 15, 2002, the
date of Regal’s original petition. Id. at *13.
The Fourteenth Court of Appeals noted in Tex Star Motors that the purposes
of awarding prejudgment interest—full compensation to the plaintiff and
expediting settlement and trial—are not “served by determining that prejudgment
interest accrues before the date the defendant receives notice” of the claim. Id. In
that case, Tex Star did not receive notice of the claim on which Regal ultimately
recovered until November 15, 2002, the date of the amended petition. Id. Prior to
this point in time, therefore, Tex Star could not have attempted settlement or made
efforts to expedite trial on that claim. Id. Our sister court thus determined that the
appropriate date for the accrual of prejudgment interest was the date of Regal’s
amended petition. Id.; I-10 Colony, 393 S.W.3d at 480 (“It would not be equitable
to charge I-10 for prejudgment interest accruing on a claim before it received any
notice of that claim.”); see also Thrift v. Estate of Hubbard, 44 F.3d 348, 362 (5th
Cir. 1995) (applying predecessor to section 304.104 and holding that because
defendant could not settle claim prior to receiving notice of claim in amended
complaint, district court properly used date of amended complaint to trigger
49
accrual of prejudgment interest); Citizens Nat’l Bank, 142 S.W.3d at 486–88
(following same rationale in analogous situation in which plaintiff filed suit against
one defendant then filed separate suit against two other defendants eight months
later).
Here, Carswell first filed her pre-mortem health care liability claims against
Christus on June 7, 2005. She later amended her petition to assert her post-mortem
claims against Christus on January 5, 2007. Carswell ultimately prevailed only on
her post-mortem claims, but the trial court calculated the prejudgment interest
award from the date she originally filed suit, not the date she filed her amended
petition asserting the post-mortem claims. One of the purposes of allowing
prejudgment interest awards is to encourage and expedite settlement of claims. See
Johnson & Higgins, 962 S.W.2d at 529; I-10 Colony, 393 S.W.3d at 480; Tex Star
Motors, 2012 WL 58945, at *13; Citizens Nat’l Bank, 142 S.W.3d at 486. As the
Fourteenth Court of Appeals pointed out in I-10 Colony and Tex Star Motors, a
defendant cannot attempt to settle a claim until it has notice of the claim. 393
S.W.3d at 480; 2012 WL 58945, at *13; see also Citizens Nat’l Bank, 142 S.W.3d
at 388. Because Carswell did not assert her post-mortem claims, the only claims
on which she prevailed at trial, until her third amended petition, we conclude that
the trial court should have used the date of that petition—January 5, 2007—to
calculate the prejudgment interest award.
50
We sustain Christus’s third issue.
Sanctions
Finally, in its fourth issue, Christus contends that we should vacate the trial
court’s sanctions awards against it because (1) it did not engage in any misconduct
justifying the sanctions award, and (2) to the extent that it did engage in discovery-
related misconduct, the trial court’s sanctions award is not just because it is not
supported by any evidence in the record.
A. Standard of Review and Sanctions Law
We review a trial court’s ruling on a motion for sanctions for an abuse of
discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Taylor v. Taylor,
254 S.W.3d 527, 532 (Tex. App.—Houston [1st Dist.] 2008, no pet.). A trial court
abuses its discretion when it acts without reference to any guiding rules and
principles, and we reverse a trial court’s ruling only if its action is arbitrary or
unreasonable. Cire, 134 S.W.3d at 838–39 (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241, 242 (Tex. 1985)). A trial court does not
abuse its discretion if it bases its decision on conflicting evidence and some
evidence supports its decision. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998)
(orig. proceeding); Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 643
(Tex. App.—Houston [1st Dist.] 2010, pet. denied). We make an independent
inquiry of the entire record to determine whether the trial court abused its
51
discretion in imposing the particular sanctions. Scott Bader, Inc. v. Sandstone
Prods., Inc., 248 S.W.3d 802, 812 (Tex. App.—Houston [1st Dist.] 2008, no pet.)
(citing Daniel v. Kelley Oil Corp., 981 S.W.2d 230, 234 (Tex. App.—Houston [1st
Dist.] 1998, pet. denied)).
Trial courts use sanctions to assure compliance with the discovery rules and
to deter those parties who might be tempted to abuse the discovery process in the
absence of a deterrent. TEX. R. CIV. P. 215.2; Cire, 134 S.W.3d at 839; Scott
Bader, 248 S.W.3d at 812 (“Rule of Civil Procedure 215.2 allows a trial court to
enter ‘just’ sanctions for a party’s failure to comply with a discovery order or
request.”). A trial court’s sanction power is limited, however, in that the court
“may not impose a sanction that is more severe than necessary to satisfy its
legitimate purpose.” Cire, 134 S.W.3d at 839 (citing Hamill v. Level, 917 S.W.2d
15, 16 (Tex. 1996)). In TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d
913 (Tex. 1991), the Texas Supreme Court established a two-part test for
determining whether a sanctions award is “just.” First, a direct relationship must
exist between the offensive conduct and the sanction imposed, which means that
the sanction must be “directed against the abuse and toward remedying the
prejudice caused [to] the innocent party.” Cire, 134 S.W.3d at 839 (quoting
TransAmerican, 811 S.W.2d at 917). Second, the sanction must not be excessive,
meaning that “[t]he punishment should fit the crime,” and courts must consider the
52
availability of less-stringent sanctions and whether the less-stringent sanctions
would fully promote compliance. Id. (quoting TransAmerican, 811 S.W.2d at
917); Taylor, 254 S.W.3d at 533 (“[A] sanction imposed should be no more severe
than necessary to satisfy its legitimate purposes, which include securing
compliance with discovery rules, deterring other litigants from similar misconduct,
and punishing violators.”).
B. Propriety of Trial Court’s Sanctions Order
1. Sanctionable Conduct by Christus
In its March 13, 2008, sanctions order, the trial court found, among other
things, that Christus had improperly concealed Jerry’s heart tissue, failed to
supplement its response to Carswell’s discovery request seeking production of
“tissues, fluids, specimens, and/or slides containing tissues or fluids belonging to
Jerry Carswell” in a timely manner, and violated the court’s August 28, 2006
ruling denying Christus’s motion for leave to inspect Jerry’s heart tissue.
In July 2005, Christus responded that it “will supplement” its answer to
Carswell’s discovery request seeking production of Jerry’s tissues. Christus
presented evidence that it first learned in December 2005 that portions of Jerry’s
heart had been retained by Dr. Terrel. It alleged that it informed Carswell of this in
March 2006 in a telephone call to her attorneys and by faxing the expert report of
Dr. Wheeler, in which he referred to the retained samples. Carswell disputed this
53
allegation and instead argued that she did not receive notice of the retention until
Dr. Terrel’s deposition in October 2006. It is undisputed that Christus did not
formally supplement its discovery response until December 2006. The trial court
found that this conduct, among other conduct, was a basis for sanctions.
Texas Rule of Civil Procedure 193.5 provides that if a party learns that its
response to written discovery was incomplete, it must amend or supplement its
response. TEX. R. CIV. P. 193.5(a). The amendment or supplementation must be
made “reasonably promptly after the party discovers the necessity for such a
response.” TEX. R. CIV. P. 193.5(b). A party who fails to timely supplement a
discovery response may not introduce into evidence the material that was not
timely disclosed. TEX. R. CIV. P. 193.6(a) (providing two exceptions to general
rule: good cause for failure or failure would not unfairly surprise or prejudice
opposing party); see also TEX. R. CIV. P. 193.6(b) (providing that burden of
establishing exception to general rule of exclusion falls on party seeking admission
of evidence); TEX. R. CIV. P. 215.2(b) (allowing trial court to sanction party for
failing to comply with proper discovery request). The trial court may impose
monetary sanctions on a party for its failure to supplement its discovery responses
in a timely manner. See PR Invs. & Specialty Retailers, Inc. v. State, 251 S.W.3d
472, 480 (Tex. 2008).
54
The trial court had before it conflicting evidence concerning when Carswell
received notice that Dr. Terrel had retained portions of Jerry’s heart. The trial
court was therefore within its discretion to determine that Carswell did not receive
notice of this retention until Dr. Terrel’s deposition in October 2006, fifteen
months after Christus originally answered Carswell’s discovery requests and nine
months after Christus discovered that Dr. Terrel had retained Jerry’s heart tissue.
See In re Barber, 982 S.W.2d at 366 (holding that trial court does not abuse its
discretion when there is conflicting evidence and some evidence supports
decision).
Furthermore, Christus moved the trial court to allow it to inspect portions of
Jerry’s heart tissue. The trial court denied this motion on August 28, 2006. It is
undisputed that Dr. Wheeler conducted an ex parte examination of this tissue on
December 8, 2006. The trial court found that this action was a basis for sanctions.
By denying Christus’s request for inspection and further testing of Jerry’s
heart, the trial court essentially prevented further discovery on this issue. Christus
then disregarded this discovery order by allowing Dr. Wheeler to conduct his
examination. Violation of a trial court’s prior discovery order is sanctionable
pursuant to Rule 215.2(b). See TEX. R. CIV. P. 215.2(b); see also Hernandez v.
Mid-Loop, Inc., 170 S.W.3d 138, 144 (Tex. App.—San Antonio 2005, no pet.)
(holding that trial court has discretion to impose sanctions when party fails to obey
55
court order to comply with proper discovery requests); F.N. Fausing Trading ApS
v. Estate of Barbouti, 851 S.W.2d 314, 318 (Tex. App.—Houston [1st Dist.] 1992,
writ denied) (“If a party refuses to obey a court order or disregards some
mandatory rule of procedure, before imposing death penalty sanctions of dismissal,
the trial court should impose some sanction less severe and oppressive.”).
We conclude that the trial court did not abuse its discretion when it
determined in its March 13, 2008 order that Christus had engaged in sanctionable
conduct.
2. Non-monetary Sanctions
The trial court imposed the following non-monetary sanctions: (1) it struck
all of Christus’s witnesses whose “testimony stems from or relies upon ex parte
inspection(s) of heart tissue belonging to Jerry Carswell”; (2) it struck all defensive
pleadings indicating that Jerry’s death was cardiac-related; (3) it equitably
estopped Christus from disputing the conclusions in Jerry’s autopsy report and
death certificate; and (4) it provided that Carswell was entitled to a spoliation
inference and presumption that the heart and blood evidence would have been
unfavorable to Christus. Christus argues that these sanctions were not just, but
instead were excessive and unsupported by any evidence.
Carswell argues that the imposition of these particular sanctions was
harmless because the evidence that these sanctions prohibited from being
56
introduced at trial—evidence that Jerry Carswell’s cause of death was cardiac
related—was relevant only to Carswell’s health care liability claims, upon which
Christus prevailed at trial, and was not relevant to Carswell’s post-mortem claims.
We agree with Carswell.
Introduction of cardiac-related evidence would not change our conclusion
that sufficient evidence supports Carswell’s post-mortem fraud claim. Regardless
of whether this evidence was introduced, Carswell still presented evidence that
Elam made a material, false misrepresentation with at least reckless disregard for
the truth when she told Linda Carswell that Christus had contacted the HCMEO
and that the HCMEO had declined to accept the case for an autopsy because it had
been told that Jerry died of renal failure. The jury could reasonably infer that this
statement was made to induce Carswell to consent to an autopsy handled by St.
Catherine. Even if Dr. Terrel had been allowed to testify that he determined that
Jerry died of a cardiac-related issue, the evidence still reflects that Carswell was
dissuaded, as a result of Christus’s fraudulent misrepresentations, from seeking a
second opinion regarding Jerry’s cause of death from the HCMEO, an independent
office of forensic pathologists which, unlike Dr. Terrel, would have run toxicology
screenings on Jerry’s blood, as Carswell specifically requested, and would have
been able to confirm or deny Carswell’s theory that Jerry’s death was medication
related.
57
Christus, therefore, has not established that the trial court’s imposition of
non-monetary sanctions caused it any harm with respect to the jury’s finding on
Carswell’s post-mortem fraud claim.
3. Monetary Sanctions
The trial court also awarded Carswell “[m]onetary sanctions in the amount
of [$250,000].” The trial court’s order did not specify whether this amount
corresponded to the amount of attorney’s fees and expenses that Carswell had
incurred in response to Christus’s discovery misconduct, and it did not label the
award as an award of attorney’s fees.
Texas Rule of Civil Procedure 215.2 allows a trial court to require the party
failing to comply with proper discovery requests to pay “the reasonable expenses,
including attorney fees, caused by the failure” and it also allows the trial court to
“make such orders in regard to the failure as are just.” TEX. R. CIV. P. 215.2(b)(8);
see also Braden v. S. Main Bank, 837 S.W.2d 733, 740 (Tex. App.—Houston [14th
Dist.] 1992, writ denied). Monetary sanctions are appropriate to prevent a party
from taking unjust advantage of another party. See Braden v. Downey, 811 S.W.2d
922, 930 (Tex. 1991) (orig. proceeding). In considering what amount of monetary
sanctions are appropriate, the court should consider the prejudice that the
objectionable conduct has caused the opposing party. Id. at 929.
58
When a monetary sanction awarded pursuant to Rule 215 “is not tied to any
evidence in the record and the basis of calculating the amount is unknown, the
sanction constitutes an impermissible arbitrary fine.” Stromberger v. Turley Law
Firm, 251 S.W.3d 225, 226–27 (Tex. App.—Dallas 2008, no pet.) (citing Ford
Motor Co. v. Tyson, 943 S.W.2d 527, 535 (Tex. App.—Dallas 1997, orig.
proceeding)); S. Main Bank, 837 S.W.2d at 741 (“We hold that when a trial court
assesses a monetary sanction, there must be some evidence in the record linking
the amount awarded to harm actually suffered by the party seeking sanctions.”);
see also Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 187
(Tex. 2012) (“Sanctions for discovery abuse should not be dispensed as arbitrary
monetary penalties unrelated to any harm.”). Arbitrary fines “are not susceptible
to meaningful review.” Stromberger, 251 S.W.3d at 227. When we review a trial
court’s sanctions order for an abuse of discretion, “we must be able to determine
not only that the trial court’s decision to sanction the conduct at issue was proper,
but that the sanction the trial court chose was just.” Id.; see also TransAmerican,
811 S.W.2d at 917 (holding that, for sanction to be just, sanction must be directed
against particular abuse and toward remedying prejudice caused by misconduct).
Absent some evidence supporting the amount of the monetary sanction or
some basis for calculating the amount, we have no way to determine whether the
amount of the sanction is excessive. See Stromberger, 251 S.W.3d at 227; see also
59
IFC Credit Corp. v. Specialty Optical Sys., Inc., 252 S.W.3d 761, 773 (Tex.
App.—Dallas 2008, pet. denied) (“The absence of an explanation as to how the
trial court determined both the monetary and the non-monetary sanctions is
inadequate.”). When the trial court imposes a monetary sanction, “the sanctionable
conduct alone does not prescribe the amount of the sanction.” Stromberger, 251
S.W.3d at 227. “To review the decision of the amount of the monetary sanction
imposed by examining only the conduct giving rise to the sanction would permit a
‘wavering standard of subjectivity’ unrestrained by law or statute.” Id. (quoting
Tyson, 943 S.W.2d at 536); see also Para-Chem S., Inc. v. Sandstone Prods., Inc.,
No. 01-06-01073-CV, 2009 WL 276507, at *11–12 (Tex. App.—Houston [1st
Dist.] Feb. 5, 2009, pet. denied) (mem. op.) (“The record does not reveal how the
trial court arrived at the amount of the $250,000 sanction levied against Para-Chem
nor does it contain evidentiary support for the $250,000 sanction. . . . We can
determine no reason why the trial court chose to impose a $250,000 sanction rather
than some other amount.”).
Here, in the March 13, 2008 sanctions order, the trial court imposed a
“monetary sanction” against Christus in the amount of $250,000. The trial court
did not explain its rationale as to why it imposed this amount as a monetary
sanction, and the record does not contain any evidence supporting the award of this
particular amount as a sanction, such as, for example, evidence of the amount of
60
attorney’s fees and expenses that Carswell incurred in response to Christus’s
discovery-related actions. 11 Christus’s discovery conduct alone does not justify the
amount of the sanction. See Stromberger, 251 S.W.3d at 227 (holding that
reviewing monetary sanctions award by looking solely to misconduct involved
“would permit a ‘wavering standard of subjectivity’”). Because the record
contains no evidence supporting an award of $250,000 as a monetary sanction, we
have no way to determine whether this sanction is just or excessive. See id.; see
also TransAmerican, 811 S.W.2d at 917 (requiring sanction to be directed against
particular abuse and toward remedying prejudice caused by conduct and requiring
sanction to “fit the crime”); Hanley v. Hanley, 813 S.W.2d 511, 521 (Tex. App.—
Dallas 1991, no writ) (“Nothing in the record shows any connection between the
11
Carswell characterizes this sanction as “monetary costs . . . in the form of
attorney’s fees” and cites our decision in Scott Bader, Inc. v. Sandstone Prods.,
Inc., 248 S.W.3d 802 (Tex. App.—Houston [1st Dist.] 2008, no pet.), for the
proposition that supporting evidence is not required for the trial court to award
attorney’s fees as a sanction. We first note that the trial court’s March 13, 2008
sanctions order does not provide that the $250,000 award is to encompass
Carswell’s attorney’s fees and expenses. Instead, this award is merely designated
“monetary sanctions.” By contrast, in Scott Bader, Sandstone requested that the
trial court award attorney’s fees as sanctions and it attached the affidavit of one of
its attorneys who stated the total fees and expenses that Sandstone had incurred as
a result of Scott Bader’s discovery abuse. Id. at 816. On appeal, Scott Bader
challenged the sanctions award and argued that the affidavit did not support the
award when there was no basis for determining that the fees incurred were
necessary and reasonable. Id. We noted, “When attorney’s fees are assessed as
sanctions, no proof of necessity or reasonableness is required.” Id. at 817
(emphasis added). We did not hold that a trial court may award attorney’s fees as
sanctions in the absence of any evidence supporting the particular amount
assessed.
61
$50,000 awarded and any harm suffered by appellee as a result of the alleged
discovery abuse. The record does not reflect that $50,000 was anything more than
an arbitrary amount that was requested by Friedman and awarded by the trial
court.”).
Carswell cites several cases for the proposition that, when an appellate court
determines that a sanctions award is erroneous, the proper disposition is to remand
the sanctions award to the trial court for reconsideration. See, e.g., Graves v.
Tomlinson, 329 S.W.3d 128, 150–52 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied) (remanding because court could not determine which portion of sanctions
award was attributable to non-discovery-related conduct and could not evaluate
TransAmerican factors on record before it); see also Low v. Henry, 221 S.W.3d
609, 621–22 (Tex. 2007) (remanding “in the interest of justice” to allow parties to
present evidence responsive to guidelines that court delineated in that opinion for
sanctions imposed under Civil Practice and Remedies Code Chapter 10).
However, none of the cases cited by the parties allowing for remand involve the
factual situation presented here, in which the trial court imposed an arbitrary
monetary sanction against Christus in an amount that has no evidentiary support in
the record.
This Court and our sister courts that have reviewed awards of these
sanctions have uniformly held that when no evidence supports the amount of the
62
monetary sanction imposed, the proper action is to either vacate or render
judgment that the party take nothing on that particular sanction award. See Para-
Chem S., 2009 WL 276507, at *13; Stromberger, 251 S.W.3d at 227; Tyson, 943
S.W.2d at 536; see also S. Main Bank, 837 S.W.2d at 741–42 (deleting improper
sanction award and affirming trial court judgment as modified). Under these
factual circumstances, in which Carswell failed to offer legally sufficient evidence
to support the $250,000 monetary sanction award, we decline to remand this award
to the trial court for reconsideration. Cf. Dolgencorp of Tex. v. Lerma, 288 S.W.3d
922, 929 (Tex. 2009) (“Generally, if an appellate court holds there is legally
insufficient evidence to support a judgment after a trial on the merits, the proper
disposition is to reverse and render judgment).
We therefore hold that the trial court erroneously assessed $250,000 as a
monetary sanction against Christus, and we vacate this sanction award.
We sustain Christus’s fourth issue in part.
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Conclusion
We vacate the $250,000 sanction award against Christus. We further modify
the judgment of the trial court to reflect that Carswell is entitled to $211,512.56 in
prejudgment interest, and we affirm the judgment as modified. All pending
motions are dismissed as moot.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Brown.
64