Covid Nursing Home Death Charges Mulled by Mass. High Court

Lawyers representing two former nursing home managers were grilled on Wednesday in a Massachusetts high court case over the Covid-related deaths of 76 resident veterans at the beginning of the pandemic.

A decision in the case could determine whether nursing home leaders are bound by the same responsibilities not to commit neglect or mistreatment as direct caretakers. A lower court ruled that a superintendent and medical director don’t count as caretakers under a Massachusetts law protecting residents from abuse.

“People are dehydrated. People are starving,” Justice Dalila Argaez Wendlandt said during oral argument. “You’re really running an uphill battle” trying to prove that a merger of two floors in the facility didn’t increase the risk that the veterans could catch Covid-19, she said.

This was likely the first criminal case in the US brought against nursing home staff for their response to the Covid-19 pandemic, state Attorney General Maura Healey said at a press conference announcing the managers’ charges in 2020. Covid battered nursing homes at the onset of the pandemic, and has caused more than 160,000 cumulative resident deaths nationwide.

The two managers decided to merge together two floors of elderly residents with dementia due to staffing shortages, forcing Covid-positive and Covid-negative residents to cohabitate. The key point the state needs to prove is that the managers’ decision to consolidate the units increased the veterans’ risk of harm.

Covid ‘Incubator’

A grand jury found Holyoke Soldiers’ Home Superintendent Bennet Walsh and Medical Director David Clinton guilty for elder neglect and permitting serious bodily injury to an elder in September 2020.

The five named veterans in the case were all relocated from their rooms after being exposed to Covid-19 by their roommates. Three days after the floors merged, several residents had died from Covid, according to Massachusetts’ application for direct appellate review.

“This type of situation was basically an incubator for Covid,” said Anna Lumelsky, deputy chief in the Massachusetts Attorney General’s office said during argument before the Massachusetts Supreme Judicial Court. “Even though they had already been exposed, further exposure increased the danger because you’ve doubled the density of the space,” Lumelsky said.

The witnesses in the case described “bodies on top of bodies” once the units were merged, Lumelsky said. “They described a war zone. One of the family members felt they were being treated like a barn full of animals,” she said.

But “there’s no evidence that things would have been different if the merger had not occurred,” said Jeffrey Plye, an attorney at Prince Lobel Tye representing the medical director.

The justices seemed skeptical of that claim.

“Because they’ve been exposed, you can do anything to them?” Justice Scott Kafker asked. “Increased exposure has got to increase likelihood of harm,” Kafker said. He asked Plye if his defense is that the veterans essentially had Covid-19 already because they had been exposed.

The decision to merge the asymptomatic veterans was “to try to save them,” said William Bennett, an attorney at Doherty Wallace Pillsbury & Murphy representing the superintendent.

Massachusetts law bars any “caretaker of an elder” from committing “abuse, neglect or mistreatment” upon them.

The Superior Court dismissed the charges in November 2021, finding that neither Walsh nor Clinton qualified as a “caretaker of an elder.” The court also found there was insufficient evidence that the medical condition of the veterans would’ve been different had the dementia units not been merged.

“The Superior Court’s construction would immunize a broad swath of elder-care workers under the statute, enabling administrators of nursing home facilities who endanger the welfare of the elderly to avoid accountability,” the state said in its application.

The case is Commonwealth v. Clinton, Mass., No. SJC-13335, oral argument 1/4/23.