High court of Virginia rules medical suit can proceed

Reopening the issue of how John McCloskey was treated at a state mental hospital, the Virginia Supreme Court on Friday allowed a medical malpractice lawsuit involving the teen's death to proceed.

The unanimous decision did two things:

• It gave McCloskey's family one more chance to seek answers to the many questions surrounding the teenager's 1996 death, which came 14 months after he suffered a brutal attack at Western State Hospital in Staunton.

• It made it harder for doctors who work at state hospitals and other institutions to avoid lawsuits by claiming sovereign immunity, a judicial doctrine that bars legal claims against the state under most circumstances.

"We think this opinion clarifies the law of sovereign immunity in Virginia," said John Fishwick, a Roanoke lawyer who represents McCloskey's family.

Friday's decision clears the way for a trial in the lawsuit against Timothy Kane, a Western State physician accused of failing to properly treat or diagnose McCloskey's injuries.

Shortly after McCloskey was committed to the hospital following an indecent exposure incident in Rockbridge County, he "experienced a violent assault, likely through his rectum," the Supreme Court's decision stated.

Rather than examine McCloskey, the lawsuit claimed, Kane ordered a suppository and other types of treatment that only worsened the 18-year-old's condition to the point he began to vomit his own feces.

McCloskey was eventually transferred to the University of Virginia Medical Center, where he lapsed into a coma and, after struggling for 14 months with intervals of pain and unconsciousness, finally died Feb. 24, 1996.

In dismissing the lawsuit filed by McCloskey's family against Kane, Augusta County Circuit Court Judge Thomas Wood ruled last year that Kane was an employee of the hospital and thus protected by sovereign immunity.

That decision was reversed Friday by the high court, which accepted Fishwick's argument that Kane - as a part-time employee who was on call at the hospital for medical emergencies - did not fall under the same sovereign immunity protection afforded to an agent of the state.

For the most part, Kane "was free to exercise his judgment and discretion about seeing patients, and was not under anyone's supervision," Senior Justice Roscoe Stephenson wrote for the court.

Daniel Frith, a Roanoke lawyer who represents plaintiffs in medical malpractice cases, called the decision "hugely significant."

Frith said the court seems to be retreating from earlier positions that shielded doctors from liability. "As I read the court's decision, they are telling lawyers and doctors that physicians are always required to use their professional judgment and skills when it comes to providing patient care," he said.

John Jessee, a Roanoke lawyer who represents doctors, viewed the case as less expansive and in line with earlier rulings.

Lawyers for Kane could not be reached for comment Friday.

For McCloskey's family, a trial limited to the issue of medical malpractice is unlikely to provide answers to the broader question of just how the 18-year-old was injured and who bears direct responsibility.

An earlier lawsuit in federal court, which was settled last year for $50,000, raised two possibilities:

Either a staff member abused McCloskey severely enough to rupture his bowels and cause other internal injuries, the lawsuit claimed, or chronic understaffing and lax supervision at the hospital allowed a fellow patient to slip into McCloskey's cell and attack him.

Under the terms of the settlement, neither side was considered the prevailing party.

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