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Mental health agency dropped from lawsuit

Roanoke Times - 10/20/2017

A judge has removed a local mental health agency from a lawsuit that blamed it for the suicide of a senator's son, leaving one of its former employees as the last remaining defendant.

The Rockbridge Area Community Services Board is entitled to sovereign immunity from a lawsuit filed by state Sen. Creigh Deeds, Judge Paul Sheridan decided after hearing half a day of testimony and arguments Thursday in Bath County Circuit Court.

Deeds accuses the CSB and one of its caseworkers of giving up on their efforts to find space in a psychiatric hospital for his troubled 24-year-old son and then releasing him from emergency custody the night of Nov. 18, 2013.

The next morning, Austin "Gus" Deeds attacked his father, stabbing him 13 times at their Bath County farm, and then committed suicide.

In a $6 million wrongful death lawsuit, Deeds contended that his son died as a result of neglect by the state's fragmented and often ineffective mental health system.

But Sheridan accepted the arguments of an attorney for the CSB who said it should be protected by the legal doctrine of sovereign immunity, which generally shields public agencies and officials against lawsuits stemming from their performance of a governmental function.

"Sovereign immunity is still alive and well in Virginia," attorney Rosalie Pemberton Fessier told the judge.

Deeds' attorney, John Lichtenstein of Roanoke, argued that the CSB is an independent body that does not have the same protections afforded to a state agency.

Although Sheridan found the agency performed a governmental function and could not be sued, he stopped short of reaching that conclusion in the case of Michael Gentry, who as a CSB employee was directly involved in the short-lived search for a psychiatric bed for Gus Deeds.

Sheridan gave Lichtenstein two weeks to amend the lawsuit to focus specifically on Gentry's actions.

Depending on what happens next, Gentry could be granted qualified immunity, which would shield him from a claim of simple negligence. But the protection of sovereign immunity does not apply to gross negligence - which Lichtenstein said is the case with Gentry's insufficient efforts to find a bed for Gus Deeds.

Gentry did not call 27 of 34 available facilities to see if they had room to take Deeds, whom he had already determined was a threat to himself and others and should be held on a temporary detention order.

"We believe it was quitting. We believe it was abandonment," Lichtenstein said. "He knows the danger, and then he quits."

It later turned out that at least five facilities in the region had room to admit a new patient, but were never contacted by Gentry.

Gentry, who no longer works for the Rockbridge Area Community Services Board, had limited time to find a bed.

Under the law at the time, CSBs had a maximum of six hours from the time a patient was first detained on an emergency custody order to find room in a mental health facility, at which point a temporary detention order would be issued. If no space was available, the patient would be free to leave.

"Mr. Gentry had a lot of decisions to make ... and a very narrow window of time," Fessier said.

At first, Deeds named the Virginia Department of Behavioral Health and Developmental Services as a defendant in a lawsuit that made more sweeping allegations against the state's mental health system.

The senator dropped the state agency from his lawsuit in July. With the Rockbridge CSB now out as well, Gentry will be the sole focus of a case that from the start has put his actions under a microscope.

At one point in the arguments Thursday, the judge asked what made this case different from that of a hypothetical surgeon who decided to walk out on a patient in the middle of a procedure.

But it's not like Gentry made no effort to find a bed, his lawyers have argued. "The defendants were not indifferent to Austin [Gus Deeds]; they showed some degree of care," a written argument stated.

Gentry called or faxed at least seven hospitals and took other steps in an effort to help Gus Deeds, including conducting an evaluation and talking with family members and a physician, his lawyers said.

At the time, overcrowding in psychiatric hospitals often led to the practice of "streeting," or returning mentally ill patients to the community for lack of a space to treat them.

Even after the six-hour limit to find a bed had passed, state law allowed Gentry to keep looking after Deeds left Bath Community Hospital, where he had been detained. Gentry decided to continue his search the next day, which proved to be too late.

Angry that his father had tried to have him committed, Gus Deeds attacked him the next morning at their Millboro farm, stabbing him repeatedly in the face and torso.

Severely wounded, Creigh Deeds managed to escape and was airlifted to a local hospital. Left behind at the farm, Gus Deeds then fatally shot himself with a rifle.

While admitting that Gentry could be judged harshly in retrospect, Fessier argued that the actions he took while trying to find treatment should guide a determination in the case - not what happened in the end.

With Creigh Deeds watching from a front bench in the courtroom, Sheridan agreed.

"The tragic result doesn't determine the outcome," the judge said. "It's a part of the total picture."

 
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