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

O P I N I O N

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 
2

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.
3

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.
4

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.
5

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 
6

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. 
7

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 
8

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.”
9

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 
10

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.
11

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. 
12

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.
13

“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 onethird 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 
14

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 
15

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.’”
16

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.”
17

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.
18

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.’”
19

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 
20

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, 
21

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.
22

• 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 fiftythousand 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.” 
23

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 
24

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 
25

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 
26

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 
27

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 
28

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.
29

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 crossexamination, 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.
30

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 
31

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).
32

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 
33

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
34

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.
35

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.
36

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.
37

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 
38

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.
39

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.
40

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 
41

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 
42

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.
43

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 
44

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 
45

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.”).
46

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 
47

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 
48

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 
49

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 
50

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.
51

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 discoveryrelated 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 
52

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 
53

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 
54

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).
55

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 
56

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 
57

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.
58

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.
59

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 
60

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 
61

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.
62

$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 
63

monetary sanction imposed, the proper action is to either vacate or render 

judgment that the party take nothing on that particular sanction award. See ParaChem 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.