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High court reinstates charges against Holyoke Soldiers' Home leaders for the deaths of patients in the early days of the pandemic

The Supreme Judicial Court ruled today that Holyoke Solders' Home Superintendent Bennett Walsh and Soldiers' Home Medical Director David Clinton will have to stand trial for elder neglect for crowding infected patients together with vulnerable, non-infected patients in the early days of the Covid-19 pandemic in 2020, leading to an unusually high number of deaths.

The 5-2 decision overturns a Superior Court judge's ruling to dismiss the charges against the two following their indictment by a Hampden County grand jury. The state's highest court said it was not reaching a conclusion on the facts of the case, only that the grand jury heard enough evidence to warrant a trial - and that the judge was wrong to conclude the two men were not "caretakers" as defined by the state's elder abuse law.

Of course, sometimes bad things happen for no discernable reason, and no one is to blame. At any subsequent trial, prosecutors will need to prove their case. We conclude only that they will have the opportunity to do so.

The court summarized what the grand jury heard and why that was enough to merit a trial for the two men:

The grand jury heard testimony that, seventeen days after the Governor declared a state of emergency in the Commonwealth because of the COVID-19 pandemic, these decision makers directed their staff to consolidate two floors of elderly veterans, some of whom had dementia, onto one floor. Forty-two disabled veterans, five of whom were named in the indictments (named veterans), were crowded into a locked space designed to house at most twenty-five patients. As one witness told the grand jury, there were "bodies on top of bodies." "[T]ightly packed together and sick," and "coughing on top of each other," the veterans at this State-run facility were left in their "johnnies," were placed in beds less than two feet apart, and were deprived of adequate hydration and food. The grand jury heard that some veterans were nonresponsive; others lay listless, mouths agape. Those with COVID-19 symptoms intermingled with those without. Record-keeping was abysmal. It was, as one witness told the grand jury, "like a war zone." Three days after the decision to consolidate, as many as ten veterans had died from COVID-19.

The grand jury also heard that the consolidation ran against known infection control protocols. Medical best practices at the time recommended isolation of patients who were symptomatic from those who were not. Indeed, we were all being told in the nascent days of the pandemic to remain at a prescribed "social distance" from each other.

And the grand jury were told that this tragedy could have been avoided; the defendants were presented with options that comported with expert advice and infection control guidelines. Clinton, who absented himself from the Soldiers' Home for his own health, was told by the chief operating officer of a nearby hospital that the hospital stood ready, willing, and able to assist. The grand jury heard that Walsh received calls from the same hospital official, but he did not return the calls; and he had daily telephone calls with the Secretary of the Department of Veterans' Services (DVS) to discuss the Soldiers' Home's COVID-19 response, yet he hid the mounting staffing crisis and emergence of COVID-19 symptoms within the Soldiers' Home from the secretary. Instead, the defendants chose silently to consolidate this vulnerable population together without adequate space or sufficient staffing to care for them. Because these facts and other information presented to the grand jury constituted probable cause to believe that the defendants violated the elder neglect statute, the Superior Court judge erred in dismissing the indictments.

In ruling to dismiss the charges, Superior Court Judge Edward J. McDonough, Jr. agreed with the two men they were not "caretakers" as defined by state elder-neglect law because that term only applies to "frontline" workers providing direct care to patients, not administrators.

The SJC, however, said that was incorrect. Justices noted the state law says somebody can be defined as a "caretaker" as the result of "a family relationship, or by a fiduciary duty imposed by law, or by a voluntary or contractual duty undertaken on behalf of such elder or person with a disability," that the law says nothing about limiting the definition to people who physically come in contact with patients and that the two men certainly had a duty to ensure their patients were well cared for.

Each is an individual who contractually is duty-bound, answerable, or accountable for the health, well-being, and safety of an elder or person with a disability such that a reasonable person would believe that the defendants' failure in this regard would adversely affect the physical health of the elder or person with a disability.

Justices David Lowy and Elspeth Cypher dissented. Although they agreed with the majority that the two men were, in fact, "caretakers" who could be charged with elder neglect, they disagreed that there was enough proof that the men "acted wantonly or recklessly," especially given the overall chaos affecting the state in March, 2020. With hindsight, they wrote, it's easy to spot how things should have been done differently, but there simply was not enough evidence to prove that the two men went out of their way to do anything criminal.

A finding of probable cause in this case ignores the "practical considerations of everyday life" (citation omitted), Arias, 481 Mass. at 617, at an unprecedented time when in many ways life as we know it was falling apart. The grand jury minutes reviewed as a whole, in the context of the world as we knew it in March 2020, rather than with our current understanding of COVID-19, show that the Commonwealth has failed to demonstrate that the defendants acted with an "indifference to or disregard of [the] probable consequences," ... when responding to the outbreak during the earliest stages of what we now know to be an unprecedented global pandemic. ... For one, reliance on this evidence fails to recognize that an extraordinary number of staff members were sick or just refusing to work and that attempts to find more staff were made to no avail. This testimony also discounts the real administrative obstacles to moving veterans to another facility. It further fails to take into account that the defendant David Clinton indicated that the Soldiers' Home was working to obtain additional personal protective equipment (PPE) prior to the consolidation and that the first request for assistance from the National Guard, which was made before the consolidation, was denied.

Perhaps most concerning, this testimony overlooks the practical, ethical, and legal difficulties of treating the facility's dementia patients. Many of the veterans at the Soldiers' Home were dementia patients, and it was common for these patients to wander throughout their respective unit and in and out of other veterans' rooms. And according to the testimony before the grand jury, as a matter of medical ethics, these patients could not be "physically or chemically restrain[ed]." As late as March 26, 2020, DPH confirmed to the Soldiers' Home that it was "not appropriate" to confine veterans with dementia to their rooms, even as an infection control measure. All of these factors are critical to determining whether there was probable cause that under these particular circumstances the consolidation was wanton or reckless.

Lowy, who wrote the dissent, concluded:

We owe our best to our soldiers who, now in old age and frail health, face the twilight of their journey. Their service to our nation and the cause of liberty has passed. Their service, however, entitles them to the opportunity to live out their days in comfort and safety. There can be no doubt that what occurred at the Soldiers' Home in March 2020 was a tragedy. And in the face of such tragedy, perhaps hurling blame and subjecting the defendants to imprisonment might salve our conscience. But criminalizing blame will do nothing to prevent further tragedy or help unravel the complex reasons why the responses of the Soldiers' Home and so many nursing homes proved inadequate in the nascent days of the pandemic. Since the testimony in the grand jury failed to constitute probable cause to criminalize such blame, I respectfully dissent.

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Voting closed 2

infected to be placed in nursing homes should all be criminally charged.

Voting closed 2