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28 Oct 2004

By Michelle Roberts

The Oregon State Hospital has agreed to pay $200,000 to the family of a patient who died in 2001 when a group of hospital workers tackled him after a disagreement over soda pop, then tied him to a restraint bed while he was unconscious.

Workers eventually noticed that Ben Bartow, 41, was not breathing and tried to revive him. The state medical examiner determined that he died of a heart attack caused by the struggle.

The amount for the two claims of negligence in Bartow's death is the maximum allowed under the Oregon Tort Claim Act, which places a limit on the extent to which a public entity may be held liable. The settlement comes at a time of increased scrutiny of the state hospital.

His death "was an avoidable incident," said Stephen J. Mathieu, an attorney for the Oregon Advocacy Center, which sued on behalf of Bartow's family. "Oregon State Hospital staff should have intervened to prevent the escalation. But because of the overcrowding and understaffing, staff were unable to pay as much attention to the warning signs as they should have."

Mathieu said Wednesday that several employees who restrained Bartow testified in depositions that they'd never heard the term "positional asphyxiation." In fact, when Bartow screamed that he couldn't breathe, they assumed that because he could scream, he could, in fact, breathe.

That "fatal error" led to Bartow's death, Mathieu said.

A Justice Department spokesman, Kevin Neely, said the hospital admitted no wrongdoing in settling the case. After Bartow's death, he said, the hospital installed defibrillators on wards, updated restraint training to include information on positional asphyxia and instructed workers on how to de-escalate situations rather than use physical restraint.

Bartow was supposed to drink only one caffeinated beverage per day. On Aug. 11, 2001, he sneaked two.

According to the lawsuit, a psychiatric aide told Bartow that because he had broken the rule, he would lose his soda pop privileges the following day. When two patients returned to the ward after the next day's "pop run," the same psychiatric aide commented loudly that Bartow, who suffered from paranoid schizophrenia, would not receive a soda.

Bartow became agitated and exchanged words with the worker. Soon, the workers and Bartow squared off.

The lawsuit alleges that the workers called for help from other wards "without attempting to verbally or physically de-escalate this adverse interaction."

According to the complaint, at least six hospital workers formed a "dog pile" on top of Bartow. "Hands and knees were placed on Benjamin Bartow's head, neck, extremities, shoulders, shoulder blades, hips and mid-back by six to 10, or possibly more, staff members," the suit states."

Lawyers, witnesses and state records indicate that other patients pleaded with staff members to let up, but workers continued, eventually injecting Bartow with tranquilizers until he went limp. Employees then placed him in steel handcuffs and ankle restraints, carried him to a seclusion room -- his head dangling between his shoulders -- and strapped him to the bed.

Sometime later, staff noticed that Bartow's face was blue, that he had no pulse and he wasn't breathing, state records show. A nurse tried to revive Bartow, using manual chest compressions and a breathing tube, but he died.

"It wasn't just his family that was devastated. So were the patients who witnessed it," said Bartow's sister, Loyette, who didn't want her last name used. "Many of them were his friends."

Bartow, a former football player at Neah-Kah-Nie High School in Rockaway Beach, was diagnosed with paranoid schizophrenia at age 19, according to his sister. From then on, her brother was in and out of hospitals and group homes. The sounds of voices in his head often terrified him, causing him to react unpredictably.

While living in a rooming house in the Medford area in 1990, Bartow severely beat a fellow resident. He was charged with attempted murder and ultimately found guilty of assault, except for insanity. He was placed under the jurisdiction of the Psychiatric Security Review Board for 20 years.

Bartow worked as a janitor in the hospital and dreamed of owning his own cleaning service.

"The amount of money wasn't the reason we sued," Bartow's sister said. "We wanted to let the hospital know that what had happened there wasn't right and, if we could, bring about some changes for the other patients who are still there."

In addition to the money paid to Bartow's family, the state has agreed to discuss supplying each ward in the psychiatric hospital with a emergency crash cart to help resuscitate patients, Mathieu said.

The settlement comes days after Sen. Peter Courtney, D-Salem, said conditions inside the 121-year-old institution are so appalling that it is vulnerable to a federal lawsuit and possible takeover by the courts.

Bob Joondeph, executive director of the Oregon Advocacy Center, a watchdog agency for people with disabilities, agreed with that assessment. Joondeph said that while he believes understaffing and overcrowding played a large role in Bartow's death, the center requested that the claim be dismissed "without prejudice" from the Bartow lawsuit, which would allow advocacy center lawyers to pursue that issue in the future.

"Sen. Courtney's warnings about potential legal liability are real," Joondeph said. "We're hoping the state will move quickly to fix these problems on its own."

© 2004 Oregonian Publishing Co. All rights reserved. Used with permission of The Oregonian.