Families of two officers slain by Zito sue hospital

Suit alleges malpractice by Dorchester General

January 29, 2003|By Chris Guy | Chris Guy,SUN STAFF

The families of two slain Eastern Shore police officers have filed a $50 million lawsuit against Dorchester General Hospital, where the killer was released from psychiatric care less than three weeks before turning a shotgun on the lawmen.

The parents of Centreville Officer Michael S. Nickerson and Queen Anne's County Deputy Jason C. Schwenz argue that Francis M. Zito, who had a lifelong history of severe mental illness, was released despite assaulting a staff member, threatening fellow patients and other displays of psychotic behavior.

"What I fear is that there is no professional accountability," said Sue Ellen Nickerson, whose son had joined the police force shortly before his death nearly two years ago.

"Here was Zito, someone with an extensive history of mental problems, and he was just released from the hospital."

In a complaint to the state Health Claims Arbitration Board - where all medical malpractice claims must be filed, even if they eventually wind up in court - family members say hospital staff members knew or should have known that Zito was a danger to himself or others.

Zito, who spent much of his life in and out of mental hospitals, was released after a nine-day stay at the Cambridge hospital Jan. 27, 2001.

On Feb. 13, 2001, Schwenz, Nickerson and state police Trooper Richard Corey Skidmore answered a complaint about loud music at Zito's home in a trailer park in Centreville, the Queen Anne's County seat.

Nickerson and Schwenz were shot as they stood on an enclosed porch, trying to enter Zito's home. Skidmore, who was not injured in the shooting, was able to subdue and arrest Zito.

Died of cancer

Zito, 43, died of cancer Nov. 17 while on death row.

He had pleaded not criminally responsible - Maryland's version of an insanity defense - but was convicted of the murders and received two death sentences.

E. Fullerton Torrey, a Virginia psychiatrist who is a frequent critic of efforts in Maryland to return mentally ill patients to the community, says Zito was typical of many who receive treatment during short hospital stays.

"Unfortunately, Maryland has an atrocious care system, but cases like this are generally not successful in court," Torrey said. "It's difficult to convince a jury that you can predict future behavior."

The case is expected to be moved from the arbitration board to a civil court - in Queen Anne's County or Dorchester County - in about 60 days, but could take years to resolve, according to Towson attorney A. Donald C. Descepolo, who is representing the two families.

Descepolo is seeking $25 million in punitive damages for both the Nickerson and Schwenz families.

In addition, he is asking for about $1.5 million for pain and suffering for each family.

"It was obvious that Dorchester General wanted him out of the facility as soon as possible," Descepolo said. "It's apparent that Mr. Zito was a danger to himself and others."

According to a discharge report from the hospital, Zito, who was involuntarily committed by his mother, was "such a very serious management problem that serious thought should be given to not admitting the patient in the future."

Declines discussion

Roy B. Cowdrey Jr., the Easton attorney who represents the hospital, would not discuss particulars of the case.

"I can't comment on a lawsuit I haven't seen," Cowdrey said. "But unless there is a very particular set of circumstances in this case, and that doesn't seem to apply, the state of Maryland grants absolute immunity to doctors who have to deal with this kind of individual."

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