Updated on Friay, July 26, 2024 at 11 a.m.
Attorneys representing a patient held at a state psychiatric facility filed a motion on Tuesday, July 23, 2024 asking the court to issue a default judgment against one of the Plaintiffs because they have not responded to the lawsuit within 60 days.
In May, Disability Rights of West Virginia (DRWV) filed a lawsuit on behalf of J.P., a man they say has been abused and wrongfully held at William R. Sharpe Hospital for more than 600 days.
DRWV is the state’s federally mandated protection advocacy system for people with disabilities.
On Sept. 14, 2022, J.P. was removed from his residential housing for people with disabilities at a Westbrook facility and sent to Sharpe, a psychiatric facility under state operation, for allegedly attacking his roommate, an incident Tina Wiseman, former director of the Office of Health Facility Licensure and Certification (OHFLAC) investigated and said in her report never happened.
J.P. is a young adult male with developmental disabilities and is mostly nonverbal. After less than a month at Sharpe, the hospital reported that Westbrook refused to accept J.P. if he were to be discharged. In that same report, the hospital questioned the original referral to Sharpe since the hospital had not observed the behavior from J.P. that was reported in the petition.
On Oct. 19, 2022, five days after Sharpe’s finding that J.P. was clinically stable and ready for discharge, the Lewis County Mental Hygiene Commissioner, Brian W. Bailey held a hearing and entered an order that civilly committed J.P. to Sharpe Hospital.
“J.P.’s case that we filed is the first of probably many cases that we’re going to be filing,” said Michael Folio, legal director of DRWV. “The crux of it is, is that there is a lack of continuum of care of services for individuals with developmental disabilities. In J.P,’s case, it’s even more egregious because we have a statement from the former OHFLAC director, who said that J.P,’s community-based provider actively and actually falsified his commitment paper to get him dumped and placed at Sharpe Hospital.”
The lawsuit aims to transfer J.P. to an appropriate community care home to treat his needs.
Abuse Inside The Hospital
According to the lawsuit, on or about June 9, 2023 one or more Sharpe Hospital employees abused and physically assaulted J.P., according to an investigation by Legal Aid of West Virginia (LAWV), cited in the lawsuit.
LAWV obtained a statement from Dr. Abid Rizvi, J.P.’s primary treating psychiatrist, and Dr. Rizvi observed that J.P. was physically abused.
In an interview with LAWV, Rizvi said the bruising could not have been self-inflicted and that a bruise on J.P.’s back resembled a shoe print.
Sharpe CEO Patrick Ryan and Department of Health Facilities (DHF) Secretary Michael Caruso have stated that J.P. was not abused or assaulted.
According to the lawsuit, Sharpe Hospital clinicians have shared that J.P and other persons in similar situations are “decompensating” during their commitment to the hospital given the chaotic psychiatric hospital environment.
“Decompensation” is a breakdown in an individual’s defense mechanisms, resulting in progressive loss of normal functioning or worsening of psychiatric symptoms, according to the American Psychological Association.
A Lack Of Response
West Virginia code allows 60 days for government agencies to respond to petitions filed against them. The lawsuit was filed on May 8.
State law also prohibits default judgment against a state agency unless the court finds the government agency clearly intends to fail to appear, plead or otherwise defend in the action.
In a motion filed Tuesday, J.P.’s lawyers said more than 60 days have passed since the lawsuit was filed and that neither the Department of Human Services (DoHS) nor its Secretary, Cynthia Persily, have “made no known attempt to answer or respond.”
“It (default judgment) would just be against Cynthia Persily, in her capacity as secretary, because she’s the one who has the statutory duty to oversee it but would not be for the other defendants because they’ve actually appeared in the case,” Folio explained.
In an email response sent the morning of July 26, Whitney Wetzel, director of communications for DoHS said the department has retained counsel and will “vigorously defend this matter,” citing state code that protects the agency.
“The plaintiff’s motion was filed with the apparent goal of generating a headline as West Virginia law explicitly provides that default judgment may not be entered against a government agency unless the agency clearly intends to not defend the matter,” Wetzel wrote.
Sharpe CEO Patrick Ryan and Department of Health Facility (DHF) Secretary Michael Caruso were also named as defendants in the original lawsuit.
Folio said it is part of Persily’s responsibility as Secretary of the DoHS to manage contracts and payments for community-based providers in the state.
“The community-based provider won’t accept him and Secretary Persily won’t enforce the contract that requires the provider to accept him,” Folio said.
He said J.P.’s case is one example of providers in West Virginia being paid for services they are not providing.
“What we want to get out of this is a safe, appropriate placement for J.P. and others with developmental disabilities,” Folio said. “We have treatment records for multiple other individuals with developmental disabilities that say they’re at baseline, they’re ready to be discharged, but their community-based provider won’t take them back, and that becomes Secretary Persily’s responsibility.”
Editor’s Note: This story has been updated with the West Virginia Department of Human Services’ response to West Virginia Public Broadcasting’s request for comment.
