On September 24, 2020, Superintendent Bennett Walsh and former Medical Director David Clinton of the Soldiers’ Home in Holyoke, Massachusetts (SHH) were indicted on criminal neglect charges in what Attorney General Maura Healey called the first criminal case in the country against nursing home operators related to the COVID-19 pandemic. Seventy-six veterans died as a result of the COVID-19 outbreak at SHH. The Massachusetts Attorney General’s Office (AG’s Office) and the United States Attorney’s Office launched investigations in April 2020.

The Charges

The defendants, Bennett Walsh and Dr. David Clinton, were indicted by a statewide grand jury on the charges of being a caretaker who wantonly or recklessly commits or permits bodily injury to an elder or disabled person (five counts for each defendant) and being a caretaker who wantonly or recklessly commits or permits abuse, neglect or mistreatment to an elder or disabled person (five counts for each defendant). Walsh and Clinton will be arraigned in Hampden County Superior Court at a later date.

SHH is a state-run, fully accredited healthcare facility that offers, among other services, veterans’ healthcare, hospice care (including full-time residential accommodations), nursing services, a veterans’ assistance center, and outpatient services. SHH operates a 247-bed long-term nursing care facility with 24-hour care by a licensed nursing staff.

The AG’s Office alleges that faced with staffing shortages, SHH consolidated two dementia units into one unit totaling 42 residents, which resulted in symptomatic residents, including confirmed COVID-19-positive residents, being placed in the same unit as asymptomatic residents. The AG’s Office also alleges that residents who were positive or symptomatic for COVID-19 were placed in dormitory-style rooms, with six veterans to a room that normally housed four veterans. The AG’s Office further alleges that residents thought to be asymptomatic were placed in nine beds in the dining room, though some of these residents were showing symptoms consistent with COVID-19 at the time of the consolidation or shortly thereafter. The beds used in the dining room were allegedly not adequately distanced and were next to the room where confirmed positive residents were located. This allowed the residents of the consolidated unit to mingle, regardless of their COVID-19 status. The AG’s Office alleges that these decisions were made on March 27, 2020, were reckless and increased the likelihood that asymptomatic veterans at SHH would contract COVID-19, put them at higher risk of death and harm, and that the decisions were ultimately the responsibility of the defendants.

Takeaways

These criminal charges are indicative of both state and federal law enforcement focus on individual accountability for COVID-19-related infections and deaths. Given that the investigation launched as a result of concern involving COVID-19 infection control procedures at SHH, nursing homes and retirement communities that experienced a high infection rate will likely be targets of government investigations.

On the day Healey announced criminal charges against top officials of SHH, she is reported to have said her office is also scrutinizing other long-term care facilities. Healey further stated that the AG’s Office has an array of criminal and civil options. It would be prudent for facilities that house large groups of people – particularly those who are at higher risk for severe illness from COVID-19 or otherwise experienced high infection rates – to conduct a review of their policies, procedures and practices throughout the pandemic to mitigate legal ramifications for past conduct and to prevent future violative conduct.

Authorship Credit: John J. Carney, Steven M. Dettelbach, Teresa Goody Guillén, Bari R. Nadworny and George A. Stamboulidis