CHARLESTON – The guardian of a man who had been confined in Mildred Mitchell-Bateman Hospital for more than a decade is suing the secretary of the West Virginia Department of Health and Human Resources after the patient was allegedly injured while in its care.

Rocco S. Fucillo, in his capacity as secretary for the West Virginia Department of Health and Human Resources, was named as a defendant in the suit.

Shawn Shumbera was confined in Mitchell-Bateman Hospital from Dec. 22, 1998, until Jan. 6, 2011, according to a complaint filed Dec. 26 in Kanawha Circuit Court.

Kim Crose claims Shumbera was diagnosed through WVDHHR as suffering from a Medley class level mental disability having adaptive deficits in three or more of the six major areas of life skills, with additional diagnoses of mental retardation and a host of mental illnesses.

By order entered Oct. 30, 2009, in a suit filed by Shumbera against WVDHHR, Kanawha Circuit Judge Tod J. Kaufman ruled that the nature of Shumbera’s disabilities required the WVDHHR to place him in a less restrictive Intermediate Care Facility for Mental Retardation, rather than confinement at Mitchell-Bateman. However, the WVDHHR continued to confine Shumbera at Mitchell-Bateman, according to the suit.

Crose claims due to the high volume of medications administered to Shumbera by Mitchell-Bateman, social workers and employees documented the need for careful monitoring of the prospective individuals selected to room with Shumbera, noting that he could become easily agitated by the labile behavior of others.

On Jan. 2, 2011, Mitchell-Bateman negligently required Shumbera, who was heavily sedated, to room with a person who was known as a violent offender and the subject of pending attempted murder charges, according to the suit.

Crose claims the defendant knew or should have known that requiring Shumbera to room with the violent offender would needlessly pace Shumbera’s personal safety at risk and for patient safety, Mitchell-Bateman’s regulations and procedures required patients such as Shumbera to be monitored or “bed checked” every 15 minutes.

However, Mitchell-Bateman staff negligently failed to monitor or bed check Shumbera and the violent offender, according to the suit, and negligently failed to adequately supervise its employees with regard to patient safety.

Crose claims approximately three days after Shumbera was confined together with the other patient, he was assaulted, sexually abused and raped by the violent offender sometime between 10 p.m. on Jan. 5, 2011, and 6 a.m. on Jan. 6, 2011, during which time the patients were not monitored or bed checked.

On Jan. 6, 2011, Erin Mills, a Mitchell-Bateman employee, called the police to report a possible sexual assault of Shumbera after she discovered blood on the bodies and bedclothes of Shumbera and his roommate, according to the suit.

Crose claims as a result of the assault, Shumbera was admitted to Cabell Huntington Hospital, where a rape kit was performed and he received medical care.

As a result of the defendant’s negligence, Shumbera sustained severe, permanent physical injuries; severe, permanent emotional distress; and other injuries, according to the suit.

Crose is seeking compensatory damages with pre- and post-judgment interest. She is being represented by C. Joseph Stevens and Ronald G. Salmons.

The case has been assigned to Circuit Judge Carrie Webster.

Kanawha Circuit Court case number: 12-C-2554

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