Texas Supreme Court Holds That Post-Mortem Fraud Claim Is A Health Care Liability Claim

162017_132140396847214_292624_nIn its opinion filed on May 20, 2016, the Supreme Court of Texas (“Texas Supreme Court”) determined that claims that the defendant hospital improperly obtained approval from the decedent’s widow for a private autopsy were health care liability claims. A Texas jury had decided that the defendant hospital had improperly obtained the widow’s consent for a private autopsy of her husband’s body (her husband had unexpectedly died in the defendant hospital) and awarded damages on that claim.

The Underlying  Facts

The plaintiff’s husband was admitted to the defendant hospital on January 19, 2004, complaining of severe pain in his right side. His attending physician prescribed narcotics to help with the pain, but he reacted adversely to them and they were discontinued. Late in the evening of January 21, 2004, and early the next morning, the plaintiff’s husband began experiencing severe pain again. Another physician prescribed pain medication, which the hospital nurses administered early in the morning of January 22. Later that morning, the plaintiff’s husband was found lying across his bed unresponsive and without a pulse. Attempts to resuscitate him were unsuccessful. Because of the circumstances, the husband’s physician directed that a complete autopsy be performed.

According to the plaintiff, the defendant hospital’s director of acute care services spoke with the plaintiff at which time the plaintiff told her that she wanted an autopsy because she wanted to know what happened. She also stated that she wanted the autopsy performed somewhere other than at the defendant hospital, such as at the county’s Medical Examiner’s Office.

The plaintiff alleged that a nurse at the defendant hospital later told her that the local Medical Examiner’s Office did not take the case and would not be performing an autopsy or investigating her husband’s death. Based on what the nurse told her, the plaintiff signed a Consent for Postmortem Procedures form provided by the nurses and checked the box for a complete autopsy with no restrictions. The form authorized doctors performing the autopsy to remove, test, and retain organs or tissues from the body.

The plaintiff filed a complaint and a series of amended complaints alleging the hospital’s wrongful conduct that was described as medical negligence (medical malpractice) before her husband’s death, and wrongful conduct after her husband’s death, including alleged fraud in obtaining her consent for an autopsy to be performed at another hospital that had a common owner.

The Texas medical malpractice jury determined that the defendant hospital had acted negligently, committed fraud, and breached its fiduciary duty to the plaintiff in connection with obtaining her consent for the autopsy to be performed, and awarded actual and exemplary damages. The defendant hospital appealed.

The Texas Supreme Court stated that it was not called upon to decide whether performing an autopsy or failing to obtain informed consent to perform an autopsy, without more, is health care, regardless of whether the autopsy was performed in a hospital or elsewhere. The Texas Supreme Court held that the professional or administrative services underlying the plaintiff’s complaint were directly related to the improper health care she alleged her husband received, or health care she alleged he should have received but did not, and therefore held that the plaintiff’s post-mortem fraud claim is a health care liability claim.


If a physician failed to obtain your informed consent regarding medical treatment or a medical procedure in Texas or elsewhere in the United States, you should promptly consult with a medical malpractice lawyer in Texas or in your U.S. state who may investigate your lack of informed consent claim for you and represent you in an informed consent case, if appropriate.

Click here to visit our website or telephone us toll-free in the United States at 800-295-3959 to be connected with medical malpractice attorneys in your state who may assist you with your informed consent claim.

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This entry was posted on Tuesday, June 7th, 2016 at 5:27 am. Both comments and pings are currently closed.

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