Deaf Man, Diagnosed as Retarded, Wins Suit but Doesn’t Smile

Moving like a stranger in a foreign culture, the 26-year-old man with a compact, athletic body weaves tentatively through a group of teen-agers practicing basketball.

As he moves, Joseph McNulty keeps an eye on the coach who is gesturing directions. He catches a pass, dribbles once and fires at the basket.

Whoosh.

To celebrate, McNulty slaps the hands of teammates. But he doesn’t smile. He seldom smiles.

In fact, McNulty has had little to smile about throughout his life. The unwanted offspring of a woman who was raped, he was misdiagnosed as retarded when he was only deaf and spent years in institutions and group homes. He was given powerful mind-altering drugs, was sexually abused and set aside as if barely human, his guardians claim.

In November, a state judge ruled that New York state was guilty of medical malpractice and owed McNulty $1.5 million in damages. Despite a long and often bitter fight, the state decided not to appeal.

‘No Happy Ending’

“This is something you could call a success story with no happy ending,” said Daniel Geller, one of McNulty’s therapists and his court-appointed guardian, the man who initiated the lawsuit against the state.

Experts disagree on whether McNulty can be restored to what would be considered a normal life for a deaf person. His backers say it’s possible with exhaustive training, but doubters call McNulty “functionally retarded” because of his years of deprivation and believe it can’t be reversed.

“He won the lawsuit, and his life will improve somewhat,” Geller said. “We’ll get him some services, but he still has a long way to go toward achieving any sense of independence.”

McNulty was a “wild child” when Geller, an audiologist, first encountered him in 1976 at the Sunmount Developmental Center in Tupper Lake. After hours of arduous work, Geller noticed something that set McNulty apart from the retarded students he worked with: The boy was eager to learn and felt a real sense of accomplishment when he succeeded.

Taken Under Wing

Geller took McNulty under his wing and into his home, where he lived for eight years while details of his treatment were argued in court.

Unwanted by his family, McNulty was admitted in 1966 at age 4 to the infamous Willowbrook State Hospital on Staten Island. That institution was later forced to close amid reports of overcrowding, understaffing and patients lying in their own filth.

State psychologists judged McNulty “an imbecile” with an IQ of 32 after giving him a test designed for people with normal hearing, according to court papers. Although subsequent examinations showed that McNulty had some hearing problems, records indicate that these findings were “initially ignored or simply not seen.” As late as 1971, McNulty was taking classes for hearing people.

As he grew up, McNulty’s only role models at Willowbrook were severely retarded people.

“He looked, walked and acted like a retarded person,” Geller said. “By the age of 14 he learned the role of a retarded person quite well because that’s all he had been associated with.”

Three Drugs at Once

Doctors heavily dosed McNulty with a series of drugs throughout his time at Willowbrook. On at least one occasion, he was given Thorazine, Haldol and Valium at the same time, according to court records.

In 1973, McNulty was sent to a family care home run by a former Willowbrook employee in the Upstate New York town of Theresa. While there, he was sexually abused by the supervisor, according to Geller and McNulty’s lawyer, Joseph Davoli. The supervisor denied the charges.

Though already a teen-ager, McNulty had no way of communicating when Geller began working with him. In his anger, he often tried to hit himself and those who wanted to help him, Geller said.

“This is a personal tragedy, but the fact that he’s deaf is not what makes it a tragedy,” said Steve Taylor, director of Syracuse University’s Center on Human Policy, which studies human rights issues for the disabled. “No human being, whether he’s deaf, mentally retarded or anything else, should have to go through what Joe McNulty went through.”

IQ Scores Improve

Geller and his wife, fellow therapist Deena Butcher, began intensive work with McNulty. Through a battery of tests in the late 1970s, his IQ scores slowly improved.

Finally, a June, 1980, evaluation by Dr. Robert Platt, the state psychologist, concluded that McNulty was of average intelligence and not mentally retarded. He scored poorly on tests not because he wasn’t smart, but because he simply wasn’t used to taking tests, Platt said.

Then the court fight began.

The case was marked by such mistrust that lawyers wouldn’t let doctors for the competing side evaluate McNulty without other doctors watching through a one-way mirror. Court of Claims Judge Jerome Hanifin wryly noted in his 159-page decision that “the fewer psychologists that he (McNulty) sees in the future, the better.”

State doctors argued that McNulty was in fact retarded, while McNulty’s lawyers contended that he was actually slightly above average in intelligence but had become mildly retarded because of the state’s mistreatment.

‘Mild Brain Dysfunction’

The truth, Hanifin wrote, was somewhere in between. McNulty, he said, has a “mild brain dysfunction” that interfered with his ability to learn. The state’s chief fault, he said, was not its failure to recognize McNulty’s intelligence, but in not harnessing the boy’s willingness to learn.

Throughout the trial, the state maintained that McNulty received proper care from the time he first entered Willowbrook. In light of Hanifin’s decision, state officials no longer claim that they were right, but aren’t quite saying they were wrong, either.

“The judge made a decision and said certain things and by not appealing, we’ve accepted that,” said Louis Ganim, spokesman for the state’s Office of Mental Retardation and Developmental Disabilities.

New York state fought McNulty’s case tenaciously not so much because of the money, but for fear that it could unleash a torrent of similar cases, Taylor said. Scott Greathead, the state’s first assistant attorney general, said New York is mandated by law to challenge such claims.

Must Pay for Therapy

The $1.5 million, which will be reduced by more than a third after legal fees are taken out, really isn’t much considering that it has to pay for McNulty’s living expenses and therapy for the rest of his life, Geller said.

“The damages that were awarded to him really can’t compensate for the terrible things that have happened to him in his life,” Taylor said.

McNulty joined in a champagne toast after winning the lawsuit, but he didn’t really grasp the concept of the victory. In a child-like scrawl, he wrote to Davoli: “Thank you for helping me win money. Now I can learn many new things.”

His guardians are still wrangling with the state over McNulty’s current living arrangements. With a growing family, Geller could no longer care for McNulty and the state placed him in a supervised apartment with three deaf and mentally retarded people.

Defends Placement

Davoli said it doesn’t make sense for McNulty to continue to live with mentally retarded people. But Ganim said the placement is appropriate because McNulty’s “level of performance” is the same as his apartment-mates.

McNulty works an assembly line job, cutting reinforced vinyl. Realistically, he can’t hope for much more challenging work in the future, Hanifin said.

He communicates through sign language and relishes the chance to get away from his structured life, either to practice with the church basketball team Davoli coaches or shoot pool with the lawyer’s kids. With a few breaks, the cat-quick McNulty could have been a professional athlete, Davoli said.

“We don’t know what he can achieve,” he said. “There’s untapped potential in his mind, but it’s been so muddled and confused and abused. It’s difficult to determine what affect that abuse will have on unlocking the door.”