State lawyers on Wednesday asked Massachusetts’ highest court to restore criminal charges against two former top officials of the Holyoke Soldiers’ Home, where at least 76 veterans died from COVID-19, after a lower court judge said there was no “reasonably trustworthy evidence” that their actions harmed veterans.
Attorney General Maura Healey originally secured grand jury indictments against former superintendent Bennett Walsh and ex-medical director Dr. David Clinton in September 2020 for putting elderly veterans at risk of contracting COVID-19 by combining two dementia units, because of what they called a staffing shortage. They were each charged with elder neglect and permitting bodily injury involving five veterans. At the time, it was believed to be the first US prosecution of nursing home caregivers over their handling of the coronavirus pandemic.
Anna Lumelsky, a lawyer in Healey’s office, told the seven justices of the Supreme Judicial Court that Walsh and Clinton made a “bad,” “poor,” and “dangerous decision” by knowingly combining asymptomatic veterans in a dining room with others who had tested positive for COVID-19.
Lumelsky described “a war-zone situation” that left family members feeling like their loved ones “were being treated like a barn full of animals.”
“The expert testimony was very strong,” Lumelsky said. “This type of situation was basically an incubator for COVID ... there’s testimony from multiple experts that a reasonable person should have understood how dangerous the situation was.”
Several justices pressed Lumelsky on her claim, however.
“What you need to show is that all of this is creating an increased risk of a substantial likelihood of harm,” Justice David A. Lowy said.
“Recklessness requires knowledge of the conduct not necessarily the result,” Lumelsky responded.
“I don’t find that what they did was reckless if they didn’t have other choices,” said Justice Scott L. Kafker.
In November, Hampden Superior Court Judge Edward J. McDonough Jr. dismissed all 10 counts against Walsh and Clinton.
“There is insufficient reasonably trustworthy evidence that, had these two dementia units not been merged, the medical condition of any of these five veterans would have been materially different,” McDonough wrote in a 22-page decision. “Therefore, because the evidence does not support a finding of probable cause to believe Mr. Walsh or Mr. Clinton committed any crime, I must dismiss the indictments against both.”
McDonough also said that elder abuse laws were intended to apply to people who provide direct care for the elderly, not administrators.
Clinton’s lawyer Jeffrey Pyle told the court “there was absolutely no evidence that Dr. Clinton met the narrow statutory definition of caretaker.”
“There’s no evidence that things would have been different if the merger had not occurred,” Pyle said. “Each of the veterans was a roommate of someone who had tested positive before the merger.”
Kafker also expressed doubt with Pyle’s argument.
“Continued exposure has got to increase the likelihood of harm,” Kafker said. “Your defense is they already have it, essentially.”
Pyle said the intent of the merger of the two units was to put all asymptomatic veterans in the dining room. “The intent was good, but the execution was not,” Pyle said.
Justice Dalila Argaez Wendlandt seemed to be more open to the prosecution, questioning how “putting people together in an environment where there’s this rather unknown infectious disease” could not have “increased the risk.”
“You’re really running an uphill battle, as I see it,” Wendlandt told Pyle.
Bennett’s lawyer William Bennett said the five veterans already were comingled in their rooms with infected roommates before they were moved to the dining room.
“If no merger, they would have stayed comingled in their rooms with their already infected roommates,” Bennett said. “The staff felt there are no other options.”