BOSTON (SHNS) – A criminal trial can proceed against two former Holyoke Soldiers’ Home officials accused of negligence that led to the deaths of elderly veteran residents early in the COVID-19 pandemic, the state’s highest court ruled Thursday.
In a 5-2 decision that reversed a lower court’s dismissal of grand jury indictments, the Supreme Judicial Court said prosecutors should have a chance to try their case against Bennett Walsh, the facility’s former superintendent, and David Clinton, its former medical director.
The five-justice majority concluded that there is probable cause to believe Walsh and Clinton both qualified as “caretakers” for the veterans who lived in the state-run facility, and that their decision-making weeks into the public health emergency — particularly a move to combine symptomatic and asymptomatic veterans in a single, undersized unit — “wantonly or recklessly” exposed victims to the highly infectious virus.
Superior Court Judge Edward McDonough “erred in dismissing the indictments” in November 2021, the high court said.
“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,” Justice Dalila Argaez Wendlandt wrote in the majority ruling. “We conclude only that they will have the opportunity to do so.”
The case against Walsh and Clinton is based largely on a March 27, 2020 decision they allegedly made to combine 42 residents from two dementia units into a single unit that typically held 25 beds. Some of the veterans were symptomatic for COVID-19, and some were asymptomatic.
Justices said that move “produced a more considerable chance or probability” of contracting COVID-19, even though Walsh and Clinton had argued the floors they were combining were self-contained and that the residents had already been exposed to the virus.
Wendlandt’s majority ruling quoted grand jury testimony from a state epidemiologist, who said guidance had been calling for separating patients who had tested positive and those who were asymptomatic as early as March 4, 2020 — more than three weeks before the consolidation.
“In fact, Clinton apparently recognized the significance of the exposure risk, exercising particular caution with respect to himself and the doctors at the Soldiers’ Home; on the same day that [a veteran] tested positive for COVID-19, Clinton began quarantining at home for a week because he was in a high-risk population — like the veterans in his care — and he advised other doctors to minimize their time at the Soldier’s Home as well,” Wendlandt wrote. “Yet the grand jury heard testimony indicating that, despite protecting himself and fellow doctors against the risk of exposure, Clinton did not employ the same caution towards the veterans.”
Justices David Lowy and Elspeth Cypher dissented. Lowy penned a 14-page dissent, attached to the opinion, arguing that Walsh and Clinton did their best to manage the risks of a nascent public health crisis amid staffing shortages.
Lowy wrote that he and Cypher did not believe there was the necessary evidence to determine the defendants acted “wantonly or recklessly.”
“At its core, this prosecution is nothing more than an exercise in assigning blame with the benefit of hindsight,” Lowy wrote. “A finding of probable cause that the defendants acted wantonly or recklessly in this case ignores the chaos, uncertainty, and unknowns present during the earliest days of the pandemic. Such a finding also fails to recognize the untenable staffing challenges the Soldiers’ Home in Holyoke (Soldiers’ Home) faced during this time.”
“There can be no doubt that what occurred at the Soldiers’ Home in March 2020 was a tragedy,” Lowy added. “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.”
The landmark opinion is poised to revive the spotlight on one of the most high-profile individual crises of the public health emergency. At least 76 military veterans who lived in the Holyoke long-term care facility died of COVID-19, prompting a flurry of investigations, terminations and resignations, regulatory reforms and lawsuits.
Former Attorney General Maura Healey, who is now governor, announced the charges against Walsh and Clinton in September 2020, alleging that they made a series of decisions that ran counter to common infection control protocols and exacerbated COVID-19’s toll inside the home.
Healey called it “the first criminal case in the country brought against those involved in nursing homes during the COVID-19 pandemic.” At least one other similar case has since been filed: in March, Los Angeles prosecutors filed charges against operators of a facility related to 14 deaths early in the pandemic.
A spokesperson for Healey, who appealed the Superior Court dismissal of the indictments, did not comment Thursday.
Healey’s successor, Attorney General Andrea Campbell, praised the ruling.
“The Court’s decision today is welcome and important news, and it affirms what we already knew: the leaders and managers of facilities like the Soldiers’ Home share responsibility for the health and safety of their residents,” Campbell said in a statement. “Today’s decision allows us to focus once again on securing accountability for the tragic and preventable deaths at the Soldiers’ Home in Holyoke.”
Campbell’s office said the decision returns the case to Hampden Superior Court, where Walsh and Clinton will each face five counts of caretaker who wantonly or recklessly commits or permits abuse, neglect or mistreatment to an elder or disabled person.
Michael Jennings, an attorney who represented Walsh, said it is “important to remember that this decision is very limited.”
“It only involves the question of whether the grand jury heard enough evidence to support probable cause to ‘arrest’ or in this case to accuse by indictment. The grand jury process is a closed, one sided process,” Jennings said in a statement to the News Service. “The subject and/or counsel are not present. No cross examination of witnesses. Hearsay is admissible and much of this presentation was based on hearsay. No opportunity for the subject of the grand jury inquiry to present contrary evidence. And there is plenty of it. The court found that there was enough evidence presented to the grand jury to support a finding of probable cause.”
He pointed to footnotes in the majority ruling in which justices emphasize that the question they sought to answer was not whether the defendants “did the best they could,” and to another footnote in the dissent in which Lowy wrote that Walsh was primarily an administrator who relied on medical professionals to make the decision to consolidate patients.
“We’ve been preparing for trial. We’ll be ready to challenge the Commonwealth’s evidence in a public courtroom in front of a jury when that opportunity comes,” Jennings added.
Said Jeffrey Pyle, an attorney for Clinton: “The dissent eloquently explains why this prosecution is misguided, and why Dr. Clinton is not guilty. We look forward to clearing his name at trial.”