Could Texas Courts Consider Forensic Psychiatric Testimony to be Practicing Medicine?


Does an autopsy fall within the practice of medicine in Texas? This is an important legal question that could have implications for the practice of forensic psychiatry in Texas.

The Texas Medical Liability Act defines “health care” 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.” As such, it appears that the objective, non-treating approach of forensic psychiatric practice would not qualify as the provision of “health care” in Texas. However, the Texas Supreme Court will soon be considering an interesting autopsy case that could significantly shape the legal scope of the practice of medicine within Texas.

Jerry Carswell, a patient admitted to a Texas hospital for kidney stones, was found dead in a Texas hospital on January 22, 2004. His wife, Linda Carswell, believes that a narcotic medication he had been prescribed had contributed to his death. Mrs. Carswell claims that she requested that the hospital perform an independent autopsy, but the hospital ordered the autopsy to be performed at a different hospital under the same ownership. The autopsy did not include a toxicology test, which Mrs. Carswell maintains could have identified whether the narcotic killed her husband. She says she was misled by the hospital about the autopsy’s independence and scope.

Mrs. Carswell sued the hospital in a case known as Linda Carswell v. Christus Health Gulf Coast. A jury sided with Mrs. Carswell and awarded her $2 million for the hospital’s fraud. The hospital appealed the case, and an appeals court upheld the decision. The hospital’s attorneys argued that the appellate court incorrectly based its conclusion that “a decedent is not a patient and that an autopsy is not a form of medical treatment” on the judges’ ipse dixit— a legal term meaning an arbitrary “say-so.”

On this basis, the hospital has further appealed the case to the Texas Supreme Court, which is hearing it currently. Hospital attorneys have asked the Texas Supreme Court to consider whether Mrs. Carswell’s case falls under the Texas Medical Liability Act. The attorneys argue that the act’s definition of “health care” is broad enough to include autopsies — which would nullify Mrs. Carswell’s suit because she did not file it within the medical malpractice statute of limitations.

Other states, such as New Mexico, have held that autopsies are not health care. If the Texas Supreme Court agrees with the hospital, the decision could broaden Texas malpractice laws to include evaluators who do not provide direct patient care. Forensic psychiatry and other branches of forensic medicine have traditionally been considered immune from medical malpractice claims because they do not constitute provision of “health care.” Additionally, the importance of forensic testimony in answering legal questions is generally recognized, and courts do not want to “scare off” forensic experts by potentially making their testimony vulnerable to malpractice claims. However, if Carswell v. Christus Health were decided in the hospital’s favor, subsequent malpractice actions involving forensic psychiatry could attempt to utilize this case as precedent.

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