Attorney General Maura Healey said Tuesday she will appeal a Hampden Superior Court judge’s decision to dismiss all criminal charges against two former top officials of the Holyoke Soldiers’ Home, where at least 76 veterans died from COVID-19.
A grand jury indicted former superintendent Bennett Walsh and ex-medical director Dr. David Clinton in September 2020 on charges they put elderly veterans at risk of contracting COVID. At the time, it was believed to be the first US prosecution of nursing home caregivers over their handling of the novel coronavirus outbreak.
Healey said she decided to seek criminal indictments after what she called the “worst decision” Holyoke leaders made — combining two dementia units because of a staffing shortage. She said the decision put healthy veterans in the same unit as those who were infected or possibly infected but not showing signs of illness.
But a judge dismissed her arguments, writing in a decision last month that there was “insufficient reasonably trustworthy evidence” that, had the units not been merged, the condition of any of the five veterans cited in the case would have been materially different.
Judge Edward J. McDonough Jr. dismissed all 10 counts of elder neglect and permitting bodily injury involving five veterans against Walsh, 51, and Clinton, 72. He said in his 22-page decision that the state’s elder abuse laws were intended to apply to people who provide direct care for the elderly, not administrators.
Healey, a South End Democrat, said Tuesday her office will file a formal appeal with the state’s Appeals Court.
“The tragic loss of life at the Holyoke Soldiers’ Home broke the promise that our Commonwealth would honor these men who bravely served our country,” Healey said in a statement Tuesday. “We are filing this notice of appeal today to pursue accountability on behalf of their loved ones and communities.”
Walsh and Clinton each faced an array of charges related to their oversight of five veterans: that they “wantonly or recklessly” committed or allowed bodily injury to an elderly or disabled person, and they committed or allowed abuse, neglect, or mistreatment to an elderly or disabled person. The criminal neglect charge carried a maximum penalty of three years in prison; the bodily injury charge was punishable by a 10-year prison term, Healey said.
The charges related specifically to five veterans placed in the dining room as part of the merging of the units. Three were infected with COVID-19, including one who died.
But those five veterans, McDonough wrote, had likely been exposed to COVID-19 before the merger of the two dementia units. He also said there was little sign that any of those veterans suffered from dehydration or malnutrition — signs of serious neglect — after they were moved.
But even if they had, the judge wrote, the charges would still have to be dismissed because neither Walsh nor Clinton was a “caretaker” as required under the applicable laws. To be charged with elder abuse, someone must be directly responsible for the care of that elder. The law doesn’t apply to high-level administrators who are not involved in providing patient care, he wrote.
Healey’s office had acknowledged its approach relied in part on a “novel” theory of liability. That included the argument that the risk of contracting COVID-19 is enough to constitute a “bodily injury,” particularly for those who are older or have underlying medical conditions, according to McDonough’s ruling. He did not agree.
“A mere risk of injury is not itself an injury,” the judge wrote.
Michael Jennings, an attorney for Walsh, said he anticipated Healey may try to challenge the decision, given the case’s high-profile status and the opportunity it offers to make her legal arguments in a different forum.
“We’re disappointed, not surprised,” Jennings said of Healey’s announcement. “We were confident in our arguments when we presented them to Judge McDonough, and we continue to be confident . . . in the strength of his decision.”
The dementia units were combined on the afternoon of March 27, 2020, when the first wave of the pandemic was sweeping through the facility, putting together 42 veterans without regard for whether they had COVID-19 symptoms or diagnosis, Healey said. Some were placed six to a room that generally held four veterans, while others, believed to be asymptomatic, were sent to the dining room.
Walsh, the son of a politically influential Springfield family, had no health care experience before Governor Charlie Baker appointed him Soldiers’ Home superintendent in 2016. The Baker administration dismissed Walsh after an investigation found that he and Clinton had overseen a series of errors that had exposed veterans to a higher risk of COVID infection.
Andrea Estes of the Globe staff contributed to this report.