State settles Carey lawsuits for $5M

PHOTOGRAPHER: Justin Mason

New York will pay $5 million to resolve two wrongful death lawsuits brought by the parents of Jonathan Carey, a 13-year-old autistic boy asphyxiated by his state-employed caregiver in the back of a van in 2007.

A state Court of Claims judge approved the settlement for both cases Wednesday, effectively ending a parallel litigation in federal court. Parents Michael and Lisa Carey of Glenmont said they hope the settlement will help highlight the need for more reforms to prevent another tragedy like the death of their son.

“Our son Jonathan was a precious gift from the Lord, and we miss him every day,” they said in a statement released through their attorney Thursday. “Nothing can bring our son Jonathan back, but we hope his case will be a catalyst for further necessary reform to protect vulnerable, disabled children and adults.”

The youth, who was autistic and had developmental disabilities, was in the care of the state-operated O.D. Heck Developmental Center in Niskayuna at the time of his death. Aide Edwin Tirado smothered Carey after the boy undid his seat belt during a community outing to Crossgates Mall in February 2007.

An investigation into the boy’s death later determined that Tirado and Nadeem Mall, an aide-in-training, continued to drive around in the van for more than an hour after Carey stopped breathing. Tirado even took a moment to go video game shopping at a store at Mohawk Commons before reporting that Carey had stopped breathing.

Both aides faced criminal charges as a result of Carey’s death. Mall pleaded guilty to a count of criminally negligent homicide as part of a plea agreement and served six months in jail.

Tirado was found guilty of second-degree manslaughter following a trial and was sentenced to serve up to 15 years in prison in December 2007. He is serving his term in the Groveland Correctional Facility, a medium-security prison in Livingston County. He is eligible for parole in September 2012.

Ilann Maazel, the attorney who represented the Careys in the lawsuit, said the settlement represents an acknowledgement of the state’s culpability in the boy’s death. He said there was clear evidence of systemic problems in the state mental health system long before Carey’s death.

For instance, he said, Tirado had worked 197 hours in the two weeks before his assault on Carey and appeared visibly exhausted prior to the outing. He had worked 15 straight days, including 14 night shifts and 10 double shifts.

Nadeem Mall was a trainee and woefully unprepared to handle the troubled youth entrusted to his care, he said. Mall had also been fired from four separate agencies serving the disabled before being hired by O.D. Heck.

“Some of those records were in the possession of O.D. Heck, but they didn’t look at them,” Maazel said.

Also, there was evidence that Tirado abused Carey on several occasions before the fatal attack. Yet there is no indication the aide was ever investigated or reprimanded, he said.

“And we now see the consequences,” he said.

A spokeswoman for the state Attorney General’s Office declined to comment on the settlement. Travis Proulx, a spokesman for the state Office for People With Developmental Disabilities, acknowledged that New York’s mental health system was in serious dysfunction leading up to Carey’s death.

“As tragic as the event was, it certainly wasn’t a singular event,” he said.

But Proulx said the system has changed dramatically since Gov. Andrew Cuomo appointed Courtney Burke commissioner of the developmental disabilities office in April. Burke has since waged an ongoing effort to overhaul her office and drastically transform the culture of the system, which oversees the care of more than 126,000 New Yorkers, he said.

These reforms include a baseline standard for hiring mental health workers and a 16-point plan for screening them.

The state’s entire mental health workforce of roughly 23,000 employees has also undergone sensitivity training and has been informed of the proper method for reporting abuses.

Proulx said about 120 workers have been found in violation for abuses or neglect since the reforms began six months ago. He said the state is now trying to fire all of them, a departure from the days when about 60 percent of such workers were terminated.

“And it’s certainly not the end of the overhaul,” he said. “The reforms are continuing, and they’ll continue for years to come.”

Calls to the Careys for further comment were not returned Thursday. They are scheduled to host their fifth annual Jonathan Carey Foundation walk at the Bethlehem Town Park on Saturday, but Maazel doubted the family would speak publicly before then.

“They’re just trying to process this moment,” he said. “It’s an emotional time for them.”