CORONAVIRUS (COVID-19) RESOURCE CENTER Read More
Add To Favorites

Deeds drops agency as defendant Va. mental health agency dropped from lawsuit over the suicide of a senator's son

Roanoke Times - 7/29/2017

WARM SPRINGS - Virginia Sen. Creigh Deeds has narrowed the scope of a lawsuit in which he blames a breakdown in the state's mental health system for the suicide of his son.

At the request of Deed's attorney, a judge in Bath County Circuit Court granted a non-suit Thursday that removes the Virginia Department of Behavioral Health and Developmental Services from the $6 million wrongful death lawsuit.

Still remaining as defendants are the Rockbridge Area Community Services Board and one of its caseworkers - accused in the lawsuit of not working hard enough to place Deeds' son in a psychiatric facility as his deteriorating mental health pushed him closer to a deadly end.

Unable to find an empty hospital bed for Austin "Gus" Deeds, the agency released him from emergency custody on Nov. 18, 2013. The troubled 24-year-old returned to his Millboro home, where the next morning he stabbed his father 13 times before shooting himself to death.

It later turned out that at least five facilities in the region had room to admit a new patient, but were never contacted by Michael Gentry, the caseworker whose job was to find Gus Deeds a safe place for treatment.

"Virginia's mental health care system failed my son," Deeds, D-Bath County, said in a statement after his lawsuit was filed in November 2015.

The senator's attorney, John Lichtenstein of Roanoke, said Thursday that "when it comes to the Commonwealth, Creigh's goal was always constructive change that would keep this from happening to anyone else."

"It is in that spirit that we have come together voluntarily with the department to begin to take those steps."

A non-suit is a legal move that allows the plaintiff to withdraw a lawsuit before a final decision by a judge or jury. A lawsuit can be refiled within six months of a non-suit; if not, the case is forever closed.

Lichtenstein's request for a non-suit was approved by retired Circuit Court Judge Paul Sheridan, who also heard arguments Thursday in the portion of the case that remains.

Rosalie Pemberton Fessier, who represents Gentry and his employer, the Rockbridge Area Community Services board, contends that her clients should be protected by sovereign immunity, the legal doctrine that generally shields public agencies and officials against lawsuits stemming from their performance of a governmental function.

"We believe the court can find as a matter of law in our favor," Fessier said.

But arguments on whether the lawsuit should be dismissed were put off until October after Lichtenstein objected to Fessier's plans to present evidence Thursday. Fessier had intended to have an official of a local mental health agency testify about its general responsibilities in providing emergency mental health services.

Those are factual issues that should be heard by a jury, Lichtenstein said.

Sheridan agreed to hold a hearing on Oct. 18, at which point he will hear testimony from witnesses and additional arguments from the attorneys.

In court papers, Fessier listed a number of reasons for sovereign immunity, among them: "Protecting the public purse, providing for smooth application of government, and eliminating public inconveniences and dangers that might spring from officials being fearful to act" under the threat of "vexatious litigation."

Under Virginia law, the protection of sovereign immunity does not apply if there is evidence of gross negligence.

In making an argument for gross negligence, Lichtenstein wrote in court papers that Gentry and the community services board were well aware of Gus Deeds' struggles with mental illness, his prior suicide attempts, and his deep opposition to being committed in a psychiatric hospital.

Even after determining that Deeds met the criteria for involuntary treatment in a secure setting - posing a threat to himself and others - the defendants resorted to the practice of "streeting," or returning dangerously mentally ill patients back to the community, the lawsuit alleges.

As Gentry's inadequate search for an empty bed was nearing an end, he received a call from Gus Deeds' mother, begging that her son not be released. Gentry "brushed off" Pamela Miller Mayhew's concerns that her son would kill Creigh Deeds and then himself if he was not hospitalized, the lawsuit contends.

Before the state's Department of Behavioral Health was removed as a defendant, its lawyers pointed that Gentry did take steps to help Gus Deeds - evaluating him, talking to his family members and a physician, and calling or faxing at least seven facilities in search of an available bed.

Gentry is no longer an employee of the Rockbridge Area Community Services Board; he left the agency for reasons unrelated to the lawsuit, Fessier said.