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Wasted away 

After two fatalities, lawsuits emerge that target the county's treatment of detoxing inmates

Brian O'Leary brought his pickup to a stop at the end of a long driveway. He sat there for hours. He wasn't waiting for anybody to show up, or for anything to happen. It wasn't even his driveway.

Margaret Way, who owns the driveway, and the home that sits a half-mile back from Black Forest Road, had told O'Leary to get himself together and get out of her house. That it was time move on. He had shown up that Sunday morning last August as he had done many times, she says, "drunker than a skunk."

That morning, she couldn't believe he could even drive. "If I had known that he was going to die a couple days later, I probably would have let him sleep it off up here," she says. "But he was going to die from something, from either hitting someone when he was drunk, or drinking himself to death, or freezing to death in his car.

"He had issues, and I think, honestly, he put a bottle to his head instead of a gun."

Way called the El Paso County Sheriff's Office.

The arresting officer saw O'Leary pull his red pickup slowly out of the driveway and weave into traffic. According to the officer, O'Leary was so drunk that once he was pulled over, he nearly fell getting out of his truck. The officer noted in his affidavit the strong smell of alcohol, O'Leary's slurred speech, bloodshot eyes, how he was slow to respond to questioning and "unable to maintain his balance."

He was booked into El Paso County Criminal Justice Center for driving under the influence and driving with a suspended license. Noted in the booking report was that O'Leary had a prior alcohol conviction. And actually, only 12 days earlier, deputies had picked him up on charges of DUI, driving without a license and unlawfully carrying a concealed weapon.

No one in his family knew that O'Leary had been booked — not Brandon or Shane O'Leary, his two sons who live locally, nor his sister, Shawn, who lives in California. He didn't call them, and it's not the jail's policy to contact next of kin at booking.

If she had known, Shawn says, she would have warned the jailers that her brother was in bad health. That trying to quit drinking once before had almost killed him.

But she didn't hear from the jail until the day after her brother died.

CJC houses roughly 1,500 inmates, with a turnover of about 100 on any given day. It's the largest county jail outside of Denver and, as in all county jails, its inmates run the gamut from those awaiting trial for felonies and misdemeanors to those serving out a sentence or awaiting transfer into the state prison system. The average stay is 27 days.

Men and women come into the jail with all forms of medical needs — mental illnesses, physical illnesses, chemical addictions — and it is the jail's constitutional charge to give them the best medical care the county can afford. Most of the time, the jail succeeds. Sometimes, it fails.

Since 1998, at least 20 people have died while in the jail's custody. Since 2008, two men have died under circumstances similar enough to raise troubling questions about — and a pair of lawsuits over — the medical care the jail provides for chemically dependent inmates.

Both men, Brian O'Leary and Bruce Howard, were in poor health when they were forced into withdrawals. From all accounts, medical staff at CJC had recognized the need to keep them under heightened supervision, and yet, their families allege, it didn't happen. Due to what the families consider criminal neglect, they died within two days of being booked.

'Big B' and the boys

Last March, on Shane O'Leary's birthday, he flew out to California to move his dad to Colorado Springs.

Moving to Colorado had been a dream of Brian's for as long as his sons can remember. Shane says his mom and dad used to talk about just up and leaving California, buying land in Durango, and building a house and raising horses.

And Brian had given this dream to his sons; in 2009, Shane was the first to make the move. He got a job as an electrician and found a ranch in Black Forest where he could work part-time tending horses. Brandon, his older brother, arrived soon thereafter.

"I had been talking to my dad about it," remembers Shane. "Telling him how great it is; how much I love it. I told him about the ranch I had been working on, training the horses ... we thought it would be nice to have him out here. Get back to going hunting, and the things that made him happy."

According to his sons and his sister, Brian O'Leary had been in free fall for years. After decades of working his way up from grunt to foreman in the construction union, he was forced into early retirement by chronic work-related pains. His marriage that had raised three children fell apart and ended in divorce. He was living in his RV, but had lost his driver's license. He was also losing his battle with alcoholism.

Though just 50 at the time, O'Leary had already cashed in his retirement. He paid cash for property in Larkspur, and planned to build a house there for him and his sons.

"He was a genius with construction," Brandon says. "He was really smart with building and planning."

He parked his RV there, and worked for a brief spell at the same ranch as Shane. But he was still drinking hard, every day. And he was sort of aimless, says Brandon, "kinda bouncing around."

In 2006, Brian had tried to quit drinking cold turkey and suffered from alcohol-withdrawal seizures.

He stayed sober for about a year, but then started drinking again.

"I know that when he finally got done with the union, his shoulder was pretty shot," Brandon says. "He could work, but it was painful for him. So I think that he thought he wasn't as useful and productive as he was, and that might of just kind of depressed him: what he used to be able to do, and what he could do now."

One time, when Brandon and Shane were young, Brian was play-wrestling with them. He was a big man — his nickname was Big B — and they were rambunctious kids. To pin him, they had to gang up on him. They tackled him to the floor, but he fell back wrong, snapping his leg. The next day, he got a cast. The day after that, he went back to work. He worked through the rest of the summer, even taking Shane and Brandon along to help.

"He was the type of guy," says Shane, "that wasn't going to let some little thing like a broken leg get in the way."

Drinking 'all I can'

Every aspect of the jail's medical treatment, including staffing, is contracted out to a Greenwood Village-based company called Correctional Healthcare Management, and has been since 2002. After multiple interview requests over a span of weeks, its president, Dr. Larry Wolk, called the Independent just before press time; he offered to answer questions sent directly to him via e-mail, with the understanding that his responses wouldn't make it into this story.

The jail is investigating — standard practice when an inmate dies, says Detention Chief Paula Presley. Though Presley says she personally looks at each jail death under a microscope, she declines to speak about O'Leary's case specifically, because of the $5 million lawsuit that attorney Phil Harding has notified the county he will be filing on behalf of O'Leary's sons.

What we know about O'Leary's final days comes from documents provided by Harding to the Indy, including the medical-evaluation form filled out at his booking; a number of records relating to his medical reviews during incarceration; and the Problem Oriented Records created by the medical staff that responded to his cell after the Code Blue.

As with all inmates, O'Leary underwent a full medical evaluation at intake. Noted were his physical condition, medications, history of illness and hospitalization, dependence on alcohol, whether he was suicidal, and so on.

According to the resultant document, O'Leary's blood pressure was a bit high, but manageable. His pulse was normal. For years, he stated, he had been drinking "all I can": beer, whiskey, vodka. It was noted that O'Leary suffered from hand and joint pain, that he had "unknown heart issues in the past," and that his history of alcohol withdrawal included seizures.

He was lucid, however, the report noted, and was not yet demonstrating withdrawal symptoms.

As noted on the form, there were a number of options for his placement in the jail. If healthy, he could have been recommended for the general population. If sick, but not sick enough to be hospitalized, he could have gone to the jail's 14-bed infirmary, with access to round-the-clock medical care and supervision by a registered nurse. If delusional, he might have been sent to the mental health ward. Critically ill, and he might have been hospitalized.

Due to O'Leary's alcoholism and history with withdrawal, it was recommended by the medical staff that he spend seven days in the chemical-dependency ward, 2F1.

According to Presley, who has been with CJC for seven years, 2F1 is an open bay containing 72 beds. Inmates are visually monitored by a deputy trained to recognize symptoms of withdrawal and the medical deterioration that goes with detoxification. If needed, the deputy will transfer an inmate suffering from complications from withdrawal to the medical ward to be monitored. From there, he or she might be sent to a hospital.

Inmates are supposed to remain housed in 2F1, she says, until judged safe to transition into the general population.

But O'Leary never made it to Ward 2F1. Instead, according to eight internal jail documents reviewed by the Independent, he was instead placed into Ward B3.

When first asked to describe B3, Presley responds: "That's the general-classification ward. That's where someone goes when they first come into the facility who does not have any chemically dependent issues."

When told that it appears O'Leary had been placed into Ward B3 instead of into 2F1, despite the recommendation of the medical staff, Presley backtracks.

"I am sure it comes as no surprise to you that that ward [2F1] is full most of the time," she says. "It is possible that someone can come in and not be put directly in that ward."

B3 is often used, she says, to house the "overflow" from 2F1. And while B3 is an initial classification ward, she adds, it is also a special management ward, meaning that the deputies make security checks on each inmate on 15-minute intervals, as opposed to the 30-minute intervals in the general population.

If an alcoholic is not actively going into withdrawal, he or she could be placed into B3, Presley says: "There is just not one hard and fast rule."

It is unclear whether the deputies overseeing B3 receive the same training as the deputies in 2F1. The Independent requested, under the Colorado Open Records Act, all documents relating to the training policies for the deputies in both wards, but had not received them before press time.

Dollars and sense

It would be extremely difficult to estimate the cost to CJC for treating alcoholics during withdrawal, says Lt. Lari Sevene, the Sheriff Office's public information officer.

You'd need to know the number of inmates who go into a withdrawal requiring medical care, and then the extent of that care, all the way down to the cost of the detox medications. The jail, Sevene says, just doesn't keep track of this information.

Sheriff Terry Maketa declined a request for an interview on the subject, says Sevene, because it would be "too difficult to try to capture just one piece of the [inmate] population, and try to speak to the financial impact of just that one population."

But Dr. Gregory Kirk, a senior instructor at the University of Colorado School of Medicine in Aurora, was willing to give estimates of the costs outside of a jail setting — with the caveat that they will vary a little from region to region and hospital to hospital, and depending on the involvement of insurance providers and Medicaid and Medicare.

A mild case demands just bed rest and plenty of fluids. A moderate case, says Kirk, will be characterized by greater hyperactivity in the central nervous system. That can bring tremors, sweating, anxiety or agitation, and mean up to five days of supervised care. The patient could require IV fluids or further testing, such as CT scans or blood tests.

For this, possibly requiring a hospital stay lasting less than 24 hours, costs could run from $3,000 to $5,000. If the patient has to be admitted to the hospital, $2,500 to $5,000 per day would be the base cost — just for a bed, Kirk says.

A severe case of withdrawal, he says, can be the most medically risky chemical detoxification. You can't predict whose withdrawal may be severe, but in such a case, you may see seizures, and in a prolonged withdrawal state, confusion and visual and auditory hallucinations. The cardiac system might become overactive, too, with significant hypertension, or tachycardia coming when the heart begins to race. Blood pressure can spike, all presenting a heart risk in older people or even middle-aged adults.

There's only one safe place to detox an alcoholic going through severe withdrawal, Kirk says, especially one with a history of heart trouble. "In a hospital setting, when a detox issue is caught soon enough, it can very quickly go from a life-threatening problem to one that can be managed without a lot of complications."

This generally happens in the intensive care unit, and the costs there are high: a base of $20,000 a day, followed by non-ICU hospitalization at $5,000 to $10,000 a day. And, Kirk notes, alcohol withdrawal delirium can last up to six weeks. So "the worst-case scenario from a financial standpoint is a person who needs one to three weeks in an ICU followed by one to three weeks in a regular medical bed."

Presley says the county's economic troubles have had no impact on the jail's medical care, and that medical care would be the last place that the jail would make cuts; it's simply too critical. It's the jail's largest expense: In 2010, the county's CHM contract was for $4.88 million, a 3.27 percent increase from 2009. (According to the contract, CHM had in the past negotiated a standard 4.1 percent annual increase, but acquiesced to the lower percentage for 2010 due to the county's economic difficulties.)

But when asked whether it's financially impossible for the county to bring the wealth of resources available in a hospital setting to every detoxing inmate, Presley replies, "Absolutely."

"This is not a healthy population," she says. "We can't control their overall physical health."

While the jail makes all efforts to avoid it, death is a reality, she adds. A jail is a small city, and as in any city, people die.

'The wrong ward'

A faulty panic button made the headlines in Bruce Howard's story. It was a dramatic allegation: A 67-year-old inmate with a bad heart died under the care of the Sheriff's Office, because its emergency alarm didn't work.

Yet according to the lawsuit filed by Howard's estate last November, while the button's faulty wiring would show gross incompetence, his death was actually the result of systemic neglect that began the moment he was booked into CJC.

Michael Keating, the Denver-based lawyer representing Howard's estate, spoke only briefly about perfunctory aspects of the case, and denied a request to speak to his clients. And as with O'Leary, Presley could not speak directly to Howard's death. So the Independent's understanding of this story comes from reading the complaint and the jail's internal investigation, attached to the complaint as an exhibit and containing interviews with multiple officers and medical staff who had contact with Howard.

These can be seen here and here.

On the evening of Nov. 8, 2008, police responded to a call about a domestic altercation at Howard's house and arrested him. Per jail policy, he was denied permission to bring multiple prescription medications that he took for heart disease, diabetes and hypertension.

The jail's internal investigation indicates that medical staff ascertained that Howard required numerous medications, but that he was not treated. The lawsuit alleges he never once received medication during the two days he was held — a breach of CHM's requirement to provide appropriate medication within 24 hours of incarceration. Nor did he receive any medical support for his chemical dependency.

Both claims appear to be substantiated by the jail's own investigation.

According to the investigation, Howard clearly told staff he was "a drinker," preferring whiskey with orange juice, and soon began evincing withdrawal symptoms. But he was not placed into the chemical-dependency ward at any point.

On the day he died, Nov. 10, he had been transferred from Ward 1B3 to 1E4, a general population ward. The officer overseeing that ward, Deputy Adam Black, immediately realized something was wrong. The officer who transferred Howard reported he was detoxing: shaking, skin flushed red, sweating so profusely that he'd requested a new jumpsuit top.

"I thought Howard, B. was being housed in the wrong ward," Black stated in a report filed with the investigation. "[He] should have either been in place [sic] in Ward 2F1, the chemical dependency or placed in a medical holding cell for detoxification."

Black called medical and was told to wait until a nurse came through on the routine medical pass. While they waited, according to the deputy, Howard hallucinated. At one point, he warned Black that he had seen a two-foot-long bug crawling across the inmate lying in the next bunk; he held his hands two feet apart to describe its length.

An hour later, Howard got confused as to which cell was his and complained to Black that another inmate was in his bunk. Black helped him back to the correct cell.

Around 10 a.m., nurse Melissa Klegseth examined Howard. She told investigators that she didn't notice Howard to be sweating or shaking. "He seemed fine," she reportedly told the investigator. Her only concern was that he told her that he was seeing bugs. She assured him there were no bugs, and he responded, "These bugs have horns on them."

With that she suggested moving him to the medical ward, and that his vitals be taken there. Howard was transferred immediately, but only stayed for an hour before being transferred to the courthouse for a 2 p.m. arraignment. According to the lawsuit, his blood pressure and vitals were not tested before then — or at any time during his incarceration.

During his transfer to the courthouse for his hearing, according to testimony of inmates transferred with him, Howard had a hard time getting in and out of the van. One inmate said that he appeared to have delirium tremens, or DTs, a dangerously advanced stage in withdrawal characterized by hallucinations.

At some point during transfer, Howard cut his finger, which was treated by nurse Monica Doughty at the courthouse. She too noted that he appeared to be showing "general symptoms of alcohol withdrawal."

Howard's death was a loud outburst, his arms thrusting forward into air. He was seizing, according to the lawsuit, and he collapsed unconscious onto his left side. He was being held in one of the courthouse's sub-basement cells, called the Fish Tank. There were roughly 15 other men in that cell at the time, and they rushed to him, taking his pulse, fanning his face. They hit the panic button, waved their arms in front of the security camera, screamed for help, pounded on the cell door. The video feed from inside the cell was either ignored, or didn't raise alarm, the suit alleges.

A deputy finally noticed the pounding, according to the lawsuit, and a Code Blue was called. Medical staff arrived roughly 15 minutes after his collapse, but Howard was dead. According to the investigation, distress buttons in multiple cells were not operational that day. The button in the Fish Tank, tested by jail staff after his death, failed to function three times.

Checks and balances

According to County Attorney Bill Louis, El Paso County self-insures for $250,000, keeping that sum to pay liability awards. Above that amount, the county is covered by an excess-liability insurer.

If the Howard case were handled by a private firm, the cost would probably go to $100,000 just to reach summary judgment, the point at which the case is dismissed or sent to trial. Instead, one staff attorney is working on the Howard case, Louis says, and while she puts much time into it, she's working on other cases.

In his 14 years with the county, Louis says, damages paid to settle cases arisen from jail deaths have been low — maybe $50,000 or $60,000 on average. He doesn't recall exact numbers, as it has been years since the county lost a jail-death suit. The last court award he can recall was due to a suicide.

But he says that he never sees legal action as an inmate's family trying to make a quick buck. "We don't ever let that factor into our analysis at all. We approach it from the standpoint of: An inmate unfortunately died while in government custody, and as part of the checks and balances of our democracy, that inmate's death is going to demand a lot of judicial resources.

"Every human life has worth."

Regardless of what happens with the Howard case, Denver attorney Harding feels confident in his argument for Brian O'Leary.

By Aug. 16, his second day at CJC, O'Leary was demonstrating clear signs of alcohol withdrawal. According to his medical evaluation, he had hand tremors, and his blood pressure and pulse had jumped to hypertensive levels. He was running a temperature, and had a headache.

The jail physician started him on a regimen of vitamins and drugs, noting that he was in a moderate stage of detoxification. But he didn't get moved anywhere.

The next morning, a Code Blue was called out of B3.

According to his Problem Oriented Records, a nurse arrived only a minute later, at 11:15. O'Leary was unresponsive. His face was dusky, and his skin blue. CPR attempts failed. An ambulance was called at 11:30. He was transferred to Memorial Hospital and pronounced dead at 12:18.

Either the jail failed to recognize the danger facing him during withdrawal, Harding says, or the jail realized the risk and failed to take proper precautions. Either way, serious issues will be addressed, and the family has questions that can only be answered through a suit.

"I would love to be put out of a job," Harding says. "I would love that attorneys weren't needed, where people stand up and say that, 'I was wrong. I am sorry.'"

But Brandon and Shane O'Leary say they're hearing something very different from the people who last saw their father.

"I am no genius," says Brandon, "but I know that you can't just throw people in a box and detox them.

"Whatever. Obviously if people are in jail, they aren't frickin' angels by any means, but they are just looking at it like, 'You are just a loser.'"

chet@csindy.com

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