By LAURENCE HAMMACK
THE ROANOKE TIMES

   After years of investigation and litigation, questions about the brutal death of mental hospital patient John McCloskey have been put to rest - but not fully answered - with the settlement of a lawsuit filed by his family.

    McCloskey died in 1996, 14 months after suffering severe internal injuries while being held at Western State Hospital in Staunton.

    Although details of how the Rockbridge County teen suffered the injuries have remained murky over the years, a $10 million lawsuit filed by McCloskey's family claimed that the state hospital and its director were responsible under either one of two theories:

    Either a staff member beat McCloskey so severely that a ruptured bowel caused the 18-year-old to vomit his own feces, the suit alleged, or chronic understaffing and lax supervision at the hospital allowed a fellow patient to slip into McCloskey's cell and attack him.

    The state denied any liability in a dismissal order entered Tuesday by Senior Judge James Turk in U.S. District Court in Harrisonburg.

    "Neither party will be considered a prevailing party," the order stated.

    The amount of the settlement was not disclosed.

    "Although no sum of money can compensate the McCloskey family for their loss and suffering, the resolution of this matter does help to some degree," said Jonathan Rogers, a Roanoke attorney who represented the family.

    But as for who killed John McCloskey, "I'm afraid that will never be known with any certainty," Rogers said.

    Stacey Atwell, a spokeswoman for the state Department of Mental Health, Mental Retardation and Substance Abuse Services, referred questions to the attorney general's office, which had been defending the lawsuit. A spokesman for Attorney General Jerry Kilgore declined to comment.

    While the settlement amounted to a legal draw, Rogers said the attention McCloskey's death garnered, including a five-part series published by The Roanoke Times in 1999, shed light on a problem that had been neglected for years.

    "The mental health hospitals of Virginia are vastly underfunded, critically understaffed, and they have far too many critically ill patients to care for," he said.

    Had the case gone to trial, the plaintiffs would have faced the daunting task of showing that the hospital's director acted with deliberate indifference to McCloskey's well-being. Complicating the issue was the death in 2000 of Lynwood Harding, the mental institution's director at the time of McCloskey's stay.

    Harding's widow, as the administrator of his estate, was the last remaining defendant in the lawsuit after the hospital and other parties were removed from the case. "The case ended up in a posture that [McCloskey's family members] were uncomfortable with," Rogers said.

    At the time of this week's settlement, Turk had yet to rule on the state's motion to dismiss the case on the grounds that Harding was protected by qualified immunity, a defense that protects government officials from liability as long as their conduct does not violate clearly established constitutional rights that a reasonable person would have been aware of.

    An assistant attorney general argued during a hearing in March that Harding had lobbied for additional state money and made efforts to improve conditions at the hospital.

    McCloskey, who was from Rockbridge County, was committed to the hospital in December 1994 after his arrest on charges of indecent exposure. The mentally troubled teen was found three days later with abdominal injuries, including a ruptured bowel, that kept him in a semi-conscious state of agony for more than a year.

    McCloskey died at the University of Virginia Medical Center in February 1996. After a medical examiner ruled the death a homicide, a state police investigation focused on the Rockbridge County deputies who arrested McCloskey.

    As the case progressed, the state often referred to comments made by McCloskey, while heavily medicated and in pain, about being roughed up by men in brown shirts, a possible reference to the county sheriff's deputies.

    But as Rogers obtained more information through pre trial discovery, he settled on a theory that McCloskey was beaten by a fellow ward of the hospital. An examination at the time of his admission to Western State found no sign of internal injuries.

    At first, the fact that McCloskey was being held in solitary confinement seemed to suggest that a staff member at Western State was the culprit. But Rogers later learned that the door to his room, while locked from the inside, could be opened by anyone from the outside.

    At the time McCloskey suffered his injuries, some of the patients being held in the same area of the hospital had records of assaulting other patients and staff members.

    With the settlement of the federal lawsuit this week, only one avenue of legal inquiry remains open. A Western State doctor is named in a medical malpractice lawsuit pending in Staunton Circuit Court.

    But that case deals with medical care rendered after the attack.

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