McCloskeys anticipate settlement

Dec - 07

McCloskeys anticipate settlement

STAUNTON — Money will never compensate John McCloskey’s family, who for 14 months watched the Rockbridge County teenager suffer from grievous internal injuries that eventually took his life.

Nor will a lawsuit answer the question that torments them: Who at the mental hospital where McCloskey was a patient assaulted him so brutally that doctors first thought he had been sodomized with a broomstick?

But in the end, with solace and accountability lacking, the McCloskeys are left with money as a substitute.

An Augusta County Circuit Court judge is expected in the coming weeks to approve a $450,000 settlement in a lawsuit filed over McCloskey’s death from injuries he sustained in 1994 at Western State Hospital in Staunton.

In a Nov. 13 letter to attorneys, Judge Thomas Wood confirmed the resolution of what he called “this most remarkable case.” A related lawsuit was settled four years ago in federal court for $50,000.

Together, the settlements constitute one of the largest awards in a wrongful death case involving a mental hospital in Virginia, said Phil Theisen of the Lynchburg Depressive Disorders Association, which has followed the McCloskey case closely.

But the ultimate question remains.

“We still haven’t solved the riddle,” said Jonathan Rogers, a Floyd County lawyer who represents the McCloskey family. “We’ve narrowed the possibilities, but we’re unable to solve the riddle … of who killed John McCloskey.”

No clear answers

On the evening of Dec. 17, 1994, McCloskey was involuntarily committed to Western State. The 18-year-old manic depressive had been arrested two days earlier on charges of disorderly conduct and indecent exposure outside a Rockbridge County convenience store where he tried to buy a six-pack of beer.

Less than 24 hours later, McCloskey was rushed to the hospital. His colon was punctured; his liver was lacerated; his insides were so torn up he was vomiting his own feces.

For the next 14 months, McCloskey lapsed into and out of consciousness at the University of Virginia Medical Center. He was never lucid enough to describe what happened to him. He died Feb. 24, 1996.

McCloskey’s death was ruled a homicide, but no criminal charges were ever filed. So McCloskey’s family went to Rogers, who in 1998 filed a $10 million lawsuit in U.S. District Court in Roanoke against Western State, its director, a doctor there and two unnamed staffers.

As the case moved slowly through investigations, depositions and discovery, Rogers settled on a theory:

Either a staff member assaulted McCloskey, who in all likelihood was being disruptive and annoying people at Western State, or chronic understaffing and lax supervision at the hospital allowed a fellow patient to slip into McCloskey’s cell and assault him.

The state suggested McCloskey was injured while in the custody of Rockbridge County authorities. Rogers doubts that, noting that McCloskey received a medical examination upon his arrival at Western State and made no complaints other than how the deputies’ handcuffs had bruised his wrists.

Not only was the assailant’s identity a mystery, but so was the manner in which McCloskey was assaulted. One theory was that the 18-year-old was sodomized with a baton or broomstick. Another theory was that his injuries were caused by a massive blow to his abdomen. A state police investigator even raised the possibility that the injuries were self-inflicted.

With no clear answers, the McCloskeys agreed in 2003 to settle the case for $50,000.

If there were a consolation prize that came with the meager sum, it was that the McCloskeys were allowed to transfer part of their claim to state court — a medical malpractice lawsuit against Dr. Tim Kane, the physician on duty at Western State when McCloskey’s injuries were first discovered.

The malpractice portion of the case is what recently settled for $450,000 — in part because the facts were less murky and involved a lone defendant.

Gaps and shortcomings

At the time of McCloskey’s commitment, Kane was studying to become a psychiatrist at the University of Virginia. A medical doctor at the time, he “was moonlighting at Western State Hospital on weekends in an effort to pick up some extra money while he was in training,” Wood wrote in a summary of the case.

Sometime in the morning of Dec. 18, 1994, Kane received a call. Staff members had found McCloskey lying on the floor of his cell, vomiting and complaining of severe abdominal pain, according to the judge’s Nov. 13 letter, filed in Circuit Court.

Without examining the 18-year-old, Kane ordered a suppository. Later, when McCloskey continued to complain of pain and began vomiting his own feces, Kane examined him and ordered an X-ray, the letter stated.

Kane should have seen from the X-ray that there was free air in McCloskey’s abdominal cavity, the lawsuit alleged, which would have indicated a possible rectal assault. Instead, he ordered an enema, which only worsened McCloskey’s condition.

Finally, McCloskey was taken to the UVa hospital. He languished there for the next 14 months, alternating between comatose and semiconscious with a gaping hole in his stomach, before he succumbed to infections and complications from surgery.

Kane’s alleged negligence alone did not kill McCloskey, Rogers concedes. But to him, it only compounded the shortcomings at Western State that allowed the assault to happen.

“What Virginia and probably most of the country does with mentally ill people who are committed or sentenced [to mental institutions] is abysmal,” Rogers said. “And to have a rookie doctor in charge of doing things that he’s not qualified to do is part of the problem.”

Kane’s lawyer could not be reached last week. A spokesman for the Attorney General’s Office, which was involved in the case because Kane was a state employee, declined to comment. In the earlier case that settled for $50,000, the state denied any liability.

While the lawsuit highlighted problems with Virginia’s psychiatric hospitals, most of the recent scrutiny of the state’s mental heath system has been on gaps in community-based alternatives and outpatient treatment.

That discussion has been spurred by the events of April 16, when a mentally ill Virginia Tech student shot 32 people on campus and then killed himself. In a civil-commitment process 16 months before the shootings, Seung-Hui Cho was ordered to receive outpatient treatment. Cho reportedly attended one counseling session, then slipped through the cracks of a system that lacked adequate resources to monitor his case and thousands like it.

Some say the McCloskey case should serve as a reminder that reform of the mental health system should go beyond the aftermath of the Tech shootings.

“There are a whole lot of issues, and they can’t walk away from a good quality state hospital system,” said Bill Farrington, president of the Virginia chapter of the National Alliance on Mental Illness.

Taking responsibility

McCloskey’s parents have moved back to Pennsylvania, where they lived before moving to Rockbridge County in the 1990s.

Rogers said he has advised Carl and Rebecca McCloskey not to talk about the case until the settlement is approved, a formality that is expected to happen later this month or early next year.

While no amount of money will atone for their losses, Rogers said, the McCloskeys can claim some measure of satisfaction.

“What’s still left is the question of who really did it, and that will go unanswered,” Rogers said. “But at least the state is taking responsibility, and that matters. It matters to the family, and it matters to me.”


Source – The Roanoke Times