Healey’s office asks SJC to reinstate charges in Soldiers’ Home deaths
Judge dropped criminal negligence charges against former superintendent
MISMANAGEMENT AT THE Holyoke Soldiers’ Home undoubtedly contributed to the high COVID-19 death toll there in the first days of the pandemic. The question before the state’s highest court is whether the actions of the home’s former leaders may have constituted criminal behavior. During oral arguments on Wednesday, Supreme Judicial Court justices asked pointed questions about what options state officials had given the extraordinary circumstances, and what the actual impact was of their decisions.
At least 76 veterans died at the facility as the result of a COVID outbreak there in March of 2020. Attorney General Maura Healey filed criminal charges against the home’s superintendent at the time, Bennett Walsh, and its medical director, David Clinton, alleging that their negligence caused harm to the residents. The criminal case centered on a decision to consolidate two dementia units due to low staffing as the pandemic was spreading, which Healey said resulted in overcrowded rooms and greater exposure to COVID.But a Hampden Superior Court judge dismissed the case, finding that there was no evidence that the medical situations of the five veterans named in the complaint would have been materially different if the consolidation had not happened. Healey’s office appealed to the Supreme Judicial Court. She is seeking to have charges reinstated alleging that the actions of Walsh and Clinton involved “wanton or reckless” neglect that caused a “substantial likelihood of harm” to the veterans.
Coincidentally, the SJC heard the case on the last full day of Gov. Charlie Baker’s tenure. The deaths at the Holyoke veterans’ facility stand as one of the biggest failures of his eight years in office. Independent reports criticized Baker and his administration for hiring Walsh, who had political connections but no background in health care administration, and for failing to properly oversee him.
Unusual for such a high-profile case, all the court briefs are impounded, so the public cannot read them. The attorney general’s office asked that the briefs be impounded because they include references to grand jury testimony, which is confidential under state law. Healey’s office similarly had all the briefs impounded when the case was in Superior Court. Asked about the impoundment, Healey’s office pointed to a state law establishing the confidentiality of grand jury proceedings.
But legal experts say impounding all briefs is unusual in criminal cases, even when grand jury testimony is quoted.
“There’s a historic tradition of openness of our courts to the public, so impoundment of any court records is always the exception to the rule,” said criminal defense attorney Peter Elikann, speaking for the Massachusetts Bar Association.
During oral arguments, the justices challenged attorneys from both sides. Justice David Lowy questioned attorneys from Healey’s office about whether the conduct of Walsh and Clinton in combining the two units was really reckless, given the circumstances. Staff did try to separate symptomatic veterans in one space from asymptomatic veterans in a different space. “Is ‘wanton or reckless’ satisfied in the context of the early days of a pandemic, significant staff shortages, and the issue of what do we do to try to separate people who do have COVID and who don’t have COVID?” Lowy asked.
Assistant Attorney General Anna Lumelsky argued in court that there was evidence to show that their conduct was “wanton and reckless.” “The record’s full of evidence of witnesses at the time recognizing how reckless this conduct was, how poor and dangerous a decision this was,” Lumelsky said. For example, she pointed to a social worker who testified that she was worried about asymptomatic veterans being exposed to COVID due to the consolidation. “She was told it didn’t matter, they’d all been exposed anyway,” Lumelsky said. By doubling the density of the unit and creating a cramped space, Lumelsky said, the unit “was basically an incubator for COVID.”
Lumelsky said witnesses testified to “bodies on top of bodies, a war zone situation,” and one family member “felt like they were being treated like a barnful of animals.”
“It was a death trap, mayhem, disarray, confusion,” she said.
William Bennett, Walsh’s attorney, later zeroed in on Kafker’s questions and suggested that Holyoke Medical Center never offered to house veterans who were not in need of treatment at the time Walsh was in charge. (Veterans were ultimately moved there once new leadership took over at the home.) Bennett said the hospital contacted the home only to ask for more information when two residents were sent to their emergency room with COVID, and one of residents who was sent there was sent back because he had a do not resuscitate order, and the hospital felt it could not treat him.
“The idea the Holyoke Medical Center was an option is not real,” Bennett said.
Justices also sharply quizzed attorneys for Clinton and Walsh.
Jeffrey Pyle, Clinton’s lawyer, argued that because each of the five veterans was a roommate of someone with COVID, the five had already been exposed, so merging the units did not create a substantial likelihood of harm.
“It seems odd that because they’ve been exposed, you can do anything to them,” Kafker said. “I’m not a scientist, but continued exposure seems like it’s got to increase the likelihood of harm.”When Pyle tried to argued that the Legislature had in mind more severe types of neglect when they crafted the negligence law, Justice Dalila Wendlandt responded that he was waging an “uphill battle” in a situation where there were “bodies upon bodies all cramped up in a unit supposed to hold 20 some-odd people, where there are 40 some-odd people and people are dehydrated, people are starving.”
Although a key contention of Healey’s lawsuit is that the decision to merge two units, which had both symptomatic and asymptomatic veterans, led to more veterans becoming exposed to COVID-19, Bennett argued that without the merger of the units, the five veterans who were named in the case would have been kept in rooms with COVID-infected roommates. “One of the reasons for the merger was to give staff the opportunity to try to save those asymptomatic veterans from additional exposure,” he said.