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Texas Widow Locked in Legal Battle For Late Husband's Heart

ABC News’Ben Gittelson reports:

A Texas widow who has been locked in a legal battle for eight years to retrieve her late-husband's heart may soon get it back.

A state appeals court recently ruled in favor of Linda Carswell, who has been trying since 2005 to get a Houston hospital to release her late husband Jerry's heart.

The 61-year-old high-school track coach died unexpectedly at Christus St. Catherine Hospital, in Katy, Texas, in 2004, just days after being admitted with kidney stones. His widow sued the hospital the following year claiming the staff had been negligent in his care.

But during the course of the legal battle, Linda Carswell and the couple's two sons made a shocking discovery: St. Joseph Hospital in Houston, which conducted Jerry Carswell's autopsy, was still holding onto his heart, or at least tissue samples of it.

"It was a raw wound, and it was opened again," Linda Carswell told ABC News. "I was completely devastated by it, horrified."

At the time of the autopsy, St. Joseph was owned by Christus Health, which also owned St. Catherine.

Christus Health officials objected to returning Jerry's heart tissue if the release "will result in the destruction of those samples or would otherwise render such samples unsuitable for testing/inspection prior to the conclusion of this litigation," according to court papers.

"Christus has done so much to cause us pain," Linda Carswell said.

But she cleared a major hurdle on Aug. 29 when a Texas appeals court ruled against Christus Health, declining to uphold a stay on returning the heart tissue to the Carswell family.

Abby McNeil, a spokeswoman for Christus Health, told ABC News on Wednesday that the company will file "no further motions related to Mr. Carswell's heart tissue that's retained at St. Joseph Hospital."

A jury ruled in 2010 that St. Catherine was not negligent in Jerry's death. But it also decided the hospital committed fraud by misleading Linda Carswell about her husband's autopsy. Carswell was awarded $1.75 million in damages. The Texas appeals court also upheld that judgment.

The case has highlighted the need for hospitals to be clearer about the differences between a hospital autopsy, also known as a clinical autopsy, and a forensic autopsy, which is performed by a medical examiner. A forensic autopsy, which generally includes a toxicology report, could have determined Jerry's cause of death, but the jury found that the hospital staff had misled Linda Carswell about the need for one.

In 2005, after Linda Carswell contacted a state representative, the Texas legislature passed the Jerry Carswell Memorial Act, which requires hospitals to provide clear information to and gain informed consent from people in situations similar to Linda Carswell's.

If she gets her husband's heart back, Carswell, an English teacher of 40 years, said she would have it placed in an urn.

"Once we receive that," she said, "then our sons and I will go to the cemetery where Jerry's buried, and I'd like for the heart to be buried with him."

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