People Die And Nothing Is Done

By DAVE ALTIMARI
With reporting by Dwight F. Blint and John Springer
This story ran in The Courant on October 14, 1998
Sheriff Geno D'Angelo remembers the first time staffers at the Broome Developmental Center in Binghamton, N.Y., called his office for help last year.

A deer had been killed by a car in front of the center the evening of Nov. 24. The staff wanted it removed.

But no one from the state mental health facility had called D'Angelo four months earlier when William Roberts fell to his side, vomited and died after being restrained in a timeout room.

"I wonder how many of these deaths occur at that facility or others in this state that [police] never know about," said D'Angelo, who first learned about the death from a Courant reporter.

 

ALVINA GAUTHIER and her family fought for a thorough investigation of the death of her daughter Sandra Gordon at the Rosewood Terrace Care Center in Salt Lake City in January. After an autopsy, the 45-year-old woman's death -- originally deemed an accident -- was ruled a homicide. The state of Utah eventually closed the facility.
The Courant's investigation has found the nation's legal system falters time and again when it comes to restraint-related deaths. Just as the medical establishment fails to provide the kind of internal oversight that might prevent patients from dying, the legal system offers little hope for justice after they are dead.

Law enforcement officials, lawyers and mental health advocates say it isn't always easy, or appropriate, to place blame on the ill-trained mental health aides who typically execute restraints.

But without thorough investigation, the system too often fails to determine whether a death is a tragic accident or an act of criminal negligence. And whatever the circumstances, they say, patients' families are entitled to answers.

Yet the normal investigative process falls apart at each step, The Courant found.

Hospital workers cover up or obscure the circumstances of a death. Autopsies are not automatically performed. Police are not routinely summoned. Investigators often defer to the explanations offered by the institutions involved.

"It's easier to just say it was an accident and forget about it," said Michael Baden, a former New York state medical examiner who now serves on a state board that investigates deaths in institutions.

Thus, few are ever punished. Prosecutors rarely pursue arrests in restraint deaths and, when they do, they typically accept plea bargains to minor charges.

"The way the system runs, people die and then nothing is done about it," said Raul Campos, whose 15-year-old daughter, Edith, died while restrained in a dispute over a photograph.

Hers was a rare case in which criminal charges were filed. But an Arizona judge found restraint deaths are such a "rarity" that it would have been unreasonable to expect the aide to notice Edith's distress. He tossed the case out.

Families of dead patients, angry with the lack of accountability in the criminal justice system, then turn to civil court where they face one last obstacle to justice: jurors who must place a monetary worth on people at the bottom rung of society.

"The law is not disability-friendly. If you're disabled or mentally retarded, you don't have any value," said Pennsylvania attorney Ron Costen, who represents families in abuse cases.

A former prosecutor, Costen is familiar with the flaws of criminal investigations into restraint deaths.

Among the common problems he cited: Scenes are not preserved because staff immediately clean up the room where the restraint occurred. Staffers develop a story emphasizing the patient's existing physical problems. And workers say they were just protecting themselves or others from harm, making it hard to prove criminal intent.

Others have found staffers reluctant to blow the whistle on colleagues.

"Despite the legal and ethical obligations to report and protect patients from abuse, a strong code of silence among direct care staff still exists," California investigators found last year after an investigation into restraint abuses at Napa State Hospital. Two people have died in restraint-related incidents at Napa State in the past six years.

The California report found a system rotting from within. It cited a survey in which two-thirds of psychiatric aides statewide believe there to be a "code of silence." Workers, the report said, consider themselves victims of a bad and abusive system.

In Pennsylvania, Costen intends to propose legislation to put the system, corporations and administrators, on trial -- and not simply the low-paid aides who work for them.

"We have to make it possible to attack the corporate structure and hold them accountable for criminal actions," Costen said. His proposal would carry no prison sentence, instead fining corporations or, in the worst cases, putting them out of business.

But punishment can only follow investigation. Police and prosecutors typically rely on medical examiners to trigger a criminal case by issuing a homicide ruling. The trigger is infrequently pulled.

In 23 recent deaths examined in depth by The Courant, only three were ruled homicides. In the other cases, including the Binghamton death, medical examiners ruled the deaths to be accidental or attributed them to the patient's existing medical problems.

Baden, of New York, said these rulings fail to take into account the full context in which the patient died.

"Positional asphyxiation has this very nice ring to it," said Baden, referring to a common cause of death in restraint cases. "Like maybe somebody did it to themselves instead of their chests being compressed."

Most medical examiners say they struggle with restraint cases, but ultimately cannot issue a homicide ruling if staffers are working within the scope of their jobs.

"It's difficult to say whether a hold put on a person has any role in their death unless it's clear-cut they were doing the hold wrong," said Vincent DiMaio, the Texas medical examiner who ruled that Roshelle Clayborne died of natural causes after being restrained in a San Antonio, Texas, facility.

Such clarity is nearly impossible. Across the country, The Courant has found, there are no clear, uniform standards on restraint use, and no minimum training standards for staffers.

So prosecution is rare, too.

"If a medical examiner rules a death accidental or by natural causes, it does make getting a criminal indictment more unlikely than not," said John Loughrey, a prosecutor in Monmouth County, N.J.

In June, Loughrey presented to a grand jury his case against two staffers at the Brisbane Child Treatment Center. Staffers said 17-year-old Kelly Young's hair was hiding her face during a restraint -- so they didn't notice that her lips were turning blue.

But the grand jury refused to issue indictments after hearing the death had been ruled accidental.

Faced with unfamiliar cases that are difficult to prove, most prosecutors simply shy away.

"There's enormous variability from state to state and even county to county on what the district attorney feels is a prosecutable offense," said Robinsue Froehboese, the U.S. Justice Department's top abuse investigator.

"Unfortunately," she said, "the jurisdictions that don't prosecute these cases far outweigh those who do."

Take the case of Melissa Neyman of Tacoma, Wash.

Gerald A. Horne, a Pierce County prosecutor, would not pursue charges in Neyman's death -- even though the state attorney general's office urged criminal prosecution against the owner and a worker at the Judith Young Adult Family Home.

Tied to her bed in a makeshift restraint on the night of July 23, 1997, Neyman managed to climb out a window before becoming entangled in the straps. The 19-year-old autistic woman had been dead six hours before workers finally noticed her -- hanging from the window about 3 or 4 feet from the ground.

"We don't charge persons who had goodwill and were doing the best job they could," Horne said.

"They didn't have any intent to hurt anybody."

But the staffer did put Neyman in a restraint without a physician's permission -- a direct violation of Washington state law. The same staffer was not authorized to care for clients, did not check on Neyman for several hours, and lied to investigators about the circumstances of the death, the attorney general's office found.

When prosecutors do press charges or get indictments from grand juries, they rarely follow through and go to trial. More often they settle for a plea bargain that calls for no jail time.

Kimberlye Montgomery was originally charged with involuntary manslaughter and gross negligence, a felony with a maximum 15-year sentence, in the restraint death of 9-year-old Earl Smith in Detroit in November 1995.

Montgomery, a child-care worker at the Methodist Children's Home Society, sat on Smith and ignored his pleas for air because it was "typical of the ruses used by children to get themselves released from restraints," she said in a court deposition.

Montgomery eventually pleaded guilty to a misdemeanor and received an 18-month suspended sentence and 100 hours of community service.

Nancy Diehl, the Wayne County prosecutor who handled the Smith case, said she had little choice because many of the witnesses were other troubled children.

"We gave her a great plea because we felt we might have some problems convincing a jury of the original charge," Diehl said. "It certainly isn't easy because your witnesses are other young kids who have various problems. That's why they are in the home."

After navigating the criminal justice system and ending up empty-handed, the Smith family ended where many aggrieved families do -- in civil court. Detroit attorney Julie Gibson, who represented the Smiths, said her clients eventually realized it was best to settle the case.

In fact, few lawsuits involving restraint victims ever make it before a jury because they are settled quietly and out of court. In the mere handful of jury verdicts over the past two decades, awards typically fell under a half-million dollars, according to legal experts and a national tracking service.

When a case does go to trial, families face a final, common hurdle. Take the case of Roshelle Clayborne.

"What's the life of a poor, black, mentally ill girl who has been institutionalized for several years going to mean to a jury?" said Martin Cirkiel, the Texas attorney who represents Clayborne's family.

"I think the answer," Cirkiel said, "is not much."

Courant Staff Writers Colin Poitras, Kathleen Megan and Eric M. Weiss contributed to this story.

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