COVID-19 crimes may be tough to prove

“UTTERLY BAFFLING” was how Mark Pearlstein, the attorney retained by Gov. Charlie Baker to investigate what went wrong at the Holyoke Soldiers’ Home, described the decision to combine 42 veterans with dementia – some of them infected with COVID-19 – into a single unit with a capacity to hold 25.

Attorney General Maura Healey on Friday called the decision criminal, and filed charges against the superintendent and medical director of the facility for criminal neglect and causing or permitting serious bodily injury.

“We allege that this never should have happened,” Healey said, building her case around five asymptomatic individuals who were crammed into the merged dementia unit. Three of the five contracted COVID-19 and one died. A total of 76 veterans died at the Soldiers’ Home.

Healey said she believes the criminal charges are the first ever to target an operator of a nursing home during the COVID-19 pandemic. She said she is exploring similar charges against other nursing home operators across the state.

As gut-wrenching as the situation at the Soldiers’ Home was, the criminal charges may not be a slam dunk. The defendants are likely to argue that on March 27 they were doing the best they could dealing with a highly contagious virus in a facility full of extremely vulnerable people.

Healey isn’t the only one trying to assess blame. The Boston Globe, in a three-part series that ended Tuesday, laid much of the blame for the thousands of nursing home deaths in Massachusetts on the administration of Gov. Charlie Baker. The newspaper’s Spotlight Team reported that the Baker administration focused nearly all of its attention in the early days of the pandemic on preventing hospitals from being overrun with COVID-19 patients and missed the threat looming inside nursing homes.

As nursing home operator Rich Bane told the Globe (and CommonWealth in mid-April), the Baker administration early on during the COVID-19 crisis was “guarding the wrong man,” with results that were devastating.

“The state’s early response to the predictable crisis in the nursing home population was halting, chaotic, and in the end, disastrous,” the Spotlight Team reported. “It showed a striking lack of foresight and urgency as the virus, in the critical period between mid-March and early April, infiltrated nursing homes, eventually killing thousands of senior citizens.”

As of Monday, 6,045 nursing home residents have died of COVID-19 in Massachusetts. Nursing home deaths represent 66 percent of all COVID-19 deaths in the state.

Baker himself didn’t do an interview with the Globe. But Marylou Sudders, the secretary of health and human services, defended the administration much as lawyers for those charged at the Holyoke Soldiers’ Home are likely to defend their clients.

Sudders said administration officials, like their counterparts elsewhere, were slow to recognize the danger of contagion spreading from nursing home staffers and residents without symptoms. But once they caught on, she said, the state stopped trying to move COVID patients leaving hospitals into nursing homes and accelerated testing using National Guard units. There were glitches along the way, she said, but that’s what happens when rushing to deal with a disease about which little is known.

“There’s no playbook to a pandemic,” Sudders said. “You need to make the very best decisions, sometimes with incomplete information, as quickly as possible. You don’t have the luxury of time in a pandemic.”