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Mother of former Cumberland Children's Hospital patient files $25 million wrongful death complaint

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Posted at 10:37 PM, Oct 26, 2021
and last updated 2021-10-27 13:57:24-04

NEW KENT COUNTY, Va. -- The hospital at the center of a Virginia State Police criminal investigation is facing a third multi-million dollar lawsuit, this time for the wrongful death of an 11-year-old child.

The law firms Nichols Zauzig and Breit Cantor filed the $25 million lawsuit against the Cumberland Hospital for Children and Adolescence, its parent company Universal Health Services and its former Medical Director Dr. Daniel Davidow in Richmond Circuit Court on August 25.

Jefry Rodriguez was first admitted to the New Kent county facility on November 26, 2018. The complaint states he died September 17, 2019, hours after being transported out of the facility in critical condition for the second time in a month and during an active CPS investigation.

The complaint is filed on behalf of Jefry’s mother Marisol Rodriguez.

“This is really a case about a young man who could not protect himself and really a young man that could not speak for himself, whose mother entrusted a hospital, who said, we have the licensing, we have the skills and we have the personnel that can absolute,” said attorney Chuck Zauzig, who represents the plaintiff.

The non-verbal, self-injuring child who suffered from severe autism spectrum disorder was referred to the facility from his Shenandoah Valley school district because of his need for one-on-one monitoring.

The complaint states that Jefry began headbanging at the age of five and it continued through the age of 10.

In May of 2018, it says he was seen by a developmental-behavioral pediatrician at the University of Virginia Developmental Pediatric Clinics. She noted that Jefry started headbanging “again about 2-3 months ago” and that it happened when he didn’t have someone with him. She noted that he wore a helmet and he did not sustain injuries.

"He would just drop and, start hitting his head," said a nurse who cared for Jefry.

CBS 6 interviewed that nurse last year after she resigned from the hospital after raising unrelated abuse allegation concerns. She asked us not to identify her.

"He needed to be a one to one you know what I mean, you can't care for any other children while caring for him because it was so necessary for his safety."

But the complaint alleges that’s not what Jefry received the majority of the time during his two admissions at the hospital.

The complaint states multiple times Jefry was placed in units that “had at best a 7:1 staff to patient ratio” and although it was well documented in his notes that he was a danger to himself, the complaint states that Jefry was not required to wear his helmet around the clock and “self-harm” was not always checked off in his records.

"Jefry, who is the boy without the voice and could not protect himself, ends up in their hands and does not get one on one care as he should, because it needs to be observed you need to prevent the head injury, not react to it," said Zauzig.

The lawsuit claims, “Cumberland Hospital knowingly, fraudulently, negligently and with the intent to deceive Jefry and the plaintiff, held Cumberland Hospital out as a necessarily and appropriately licensed and credentialed facility providing child residential treatment services and inpatient psychiatric services for children.”

It alleges "during the entirety of Jefry's stay at Cumberland Hospital, no hospital unit was licensed to provide children's residential treatment program or inpatient psychiatric services. Yet, during the entirety of Jefry's stay, Cumberland Hospital, including Unit 2 and Unit 8, provided children's residential treatment program and inpatient psychiatric services to Jefry without a license." They point out that DBHDS only licensed Cumberland for a 16-bed unit for patients ages 13 to 22.

They state that a "helmet" is a "restraint" for "protective purposes" and that restraint, seclusion and time out were used on Jefry.

It's documented that only residential facilities for children that are licensed under the Regulations for Children's Residential Facilities and inpatient hospitals may use seclusions and only in an emergency.

The plaintiff alleges that the hospital and UHS knew that throughout at least 2018 and 2019 the hospital and its employees and agents were providing unlicensed services.

The complaint states, "In fact, in 2019 a Cumberland Hospital patient made a report to DBHDS through the Governor's office. The Virginia State Police and CPS were involved. The incident took place on Cumberland's Unit 8. CEO Brooks informed DBHDS that Unit 8 was not licensed by DBHDS. As a result, DBHDS did not formally investigate the complaint."

It goes on to say that VDH and DBHDS did conduct investigations in late 2019 and early 2020.

The complaint states, "The DBHDS Commissioner notified CEO Brooks via letter in February 2020 that Cumberland Hospital's Units 2, 6, 7 and 8, as well as its "Autism Unit", were operating a child "residential treatment program" and "inpatient psychiatric" services without a license." On March 16 of 2020, it states that Brooks "acknowledged this truth" in a letter to the Commissioner of DBHDS.”

CBS 6 obtained a copy of the DBHDS letter on Tuesday evening. It states in part, "Based on its review DBHDS has determined that Cumberland Hospital is currently operating "services" as defined in Virginia code 37.2-403 within some of the VDH licensed units without their required licensure from the Commissioner of DBHDS. If Cumberland Hospital chooses to continue operating these services, it must apply for the requisite DBHDS licenses.”

The letter goes on to explain, “If Cumberland Hospital chooses not to seek licensure from the DBHDS Commissioner, then Cumberland Hospital must cease the provision of services as defined in Virginia Code 37.2-403 in the units licensed by VDH."

“DBHDS was originally notified of concerns with Cumberland through DSS contacting the Commissioner. A number of meetings were held with DSS and VDH regarding complaints of abuse/neglect related to individuals. Through these meetings, it was determined that a number of the concerns noted by DSS were occurring on the VDH licensed side of Cumberland and not on the DBHDS side,” said DBHDS Communications Director Lauren Cunningham.

“Through this process, DBHDS became concerned that Cumberland was operating services as defined in Virginia Code de37.2-403 without the appropriate license. Our Department requested access to conduct an investigation at Cumberland,” she added.

“At no point during this timeframe was the hospital's license revoked, suspended or lapsed. Cumberland Hospital was and continues to be licensed as a general hospital. VDH does not issue hospital licenses based on specialty services provided,” said VDH Office of Licensure & Certification Director Kimberly F. Beazley.

"This was treated as a facility to house children not to treat and care and protect for children and that's not an individualistic decision that's a corporate systematic structural decision,” said attorney Kevin Biniazan, who represents the plaintiff.

"How labored is the breathing?” asked a New Kent county dispatcher on the night of September 17, 2019.

"Shallow," responded a Cumberland Hospital nurse attending to the emergency.

17 days before that critical 911 call, another one was placed on August 31, when Jefry was flown to VCU Medical center after the complaint states he collapsed and vomited.

The weeks leading up to it were documented in his medical record.

According to the complaint on August 18, two black eyes and edema are noted.

"His eyes were you know, kind of black eyes and he was alluding to pain in his head. So, we took off his helmet, and that was a terrifying scene,” said the nurse we interviewed last year. “His head was so swollen. The indentations from the helmet were, it was that immediately, put me into tears. The second we took that helmet off, I was in tears, and I ran to call his supervisor and I'm like, I need you now.”

The complaint states Jefry sustained a “significant bilateral periorbital edema” or swelling around the eyes and received no emergency treatment.

A nurse practitioner requested additional imaging on August 20, but the complaint points out “Davidow signed the note on August 23, and no new imaging was ever done.”

"All the different times where there are red flags there are warning signs, there are things that should have been done better and could have immediately been done better, that were either ignored or chosen to just not deal with them at that time or hoped that they would get better. But obviously, for Jefry, these were dire consequences are dire situations, and they didn't react to it the way that they should have," said Biniazan.

Jefry was diagnosed with “severe, left, frontal, temporal, swelling, ecchymosis” and a “left hematoma” on August 31.

Jefry’s Dr. at VCU also diagramed his injuries, noting a “discrepant history from the staff at Cumberland” as to how his injuries occurred.

The suit claims Dr. Davidow “reported that the child had fallen and then had a seizure.” While the behavior tech said he was sleeping alone and she and another staff member heard him banging his head with his helmet on, she said she walked him to the nurse’s station to let him lay down on chairs with blankets. She reported the nurse was asked to check on him and he vomited and stiffened up and looked like he was having a seizure.

It was also noted that there was a 2:14 staff to patient ratio.

The VCU physician noted “[c]oncern for nonaccidental trauma versus self-inflicted” and she contacted law enforcement and child protective services.

An investigation was opened by CPS.

The complaint states initially Jefry’s mother did not want Jefry to return to Cumberland.

"The only way Jefry through his mom was going to return to Cumberland hospital after being at VCU was if Cumberland agreed to provide one-to-one around-the-clock supervision, said Mike Hollingsworth an attorney representing the plaintiff. “They had him stable. But if that changed, if there was a neurological change, he was to be returned to VCU."

According to the lawsuit, Davidow did not indicate 1:1 supervision when Jefry returned to Cumberland on September 6, 2019, while his case was being investigated by CPS. His discharge summary stated, “CPT consulted, open CPS case with New Kent. Discharge back to Cumberland with 24/7 1:1 until CPS finishes the investigation.”

On September 12, 2019, the complaint shows that Jefry was at one point unresponsive and showing signs of a neurological event and potential brain damage.

The next day Dr. Davidow notes that Jefry had a seizure during the night.

The complaint states, “Davidow did not take any measures to get Jefry a higher level of care or return him to VCU.”

The suit points out that in a medical progress note on September 16, a nurse practitioner wrote “continues on fall risk and seizure precautions with no seizure documented since his return.”

"He's turning blue? Where?” asked the dispatcher on September 17, 2019.

"Body," responded the Cumberland nurse.

"Lips turning blue?” asked the dispatcher.

“Umm-hmm," responded the nurse.

Jefry wouldn’t return to VCU until it was too late.

Imaging at the Medical Center confirmed a “significant worsening” of his condition.

Jefry was brain dead. He died at 11:27 p.m. on September 17, 2019, four days before his 12th birthday.

"This family, you know, they want accountability, but they also don't want it to happen to any other Jefry," said Zauzig”

“Ultimately, this is about accountability and this lawsuit is just another step in shining the light on these facilities and saying you can't operate in the darkness in the shadows anymore. These bad things are going to come forward,” said Biniazan.

CBS 6 reached out to the defendants in this case. They were unable to comment due to the pending litigation.

Cumberland Hospital, UHS and Dr. Davidow face two other multi-million-dollar lawsuits over sex abuse and other abuse allegations. The multi-claimant act involves 38 claimants and $241.3 million in damages.

As CBS 6 was first to report last February the hospital has been under investigation by the Virginia State Police since October 17, 2017.

Since then, a former psychotherapist died by suicide on the day he was expected to accept a plea deal for a sex crime against a former patient and a former behavior technician was convicted Monday of injuring a disabled patient three days before Jefry passed away.

CBS 6 reached out to the Governor’s office about the latest allegations against the hospital and asked what steps have been taken since a spokesperson provided CBS 6 with this statement back in February of 2020. The following statement was provided by the office.

"Governor Northam takes these allegations very seriously—not only as governor but as a pediatrician and father. While the Virginia State Police continues to investigate these claims, the governor has directed Secretary of Health Daniel Carey to ensure we are doing everything possible on our end to protect the health and safety of patients."

“The health of Virginians is our top priority, and our agencies have been working to ensure the safety of these patients for quite some time," Secretary of Health Dan Carey said.

The Attorney General’s Office has asked anyone with allegations against Cumberland to contact the Virginia State Police’s Bureau of Criminal Investigations at 804-537-6788.