Coronavirus-based criminal charges against two leaders of a Massachusetts veterans nursing home where 76 patients died will likely be the first of many cases across the country regarding nursing home care during the pandemic, one legal expert predicted.
Massachusetts Attorney General Maura Healey on Friday announced what’s believed to be the first COVID-19 criminal charges in the United States against nursing home officials.
A grand jury indicted former Holyoke Soldiers’ Home Superintendent Bennett Walsh, 50, and former Medical Director Dr. David Clinton, 71, on the charges of causing or permitting serious bodily injury or neglect of an elder.
The charges stem from the decision to merge two dementia care units, combining COVID-19 positive residents with others who were asymptomatic. More than 160 residents and staff members contracted the disease after an initial outbreak in the early months of the pandemic.
The Department of Justice also is conducting an investigation into the Holyoke events.
Accused alleges ‘scapegoating’
William Bennet, Walsh’s attorney, in a statement to local media said his client “relied on the medical professionals to do what was best for the veterans given the tragic circumstances of a virus in a home with veterans in close quarters, severe staffing shortages and the lack of outside help from state officials.” It’s not clear what representation Clinton might have.
“The Attorney General should not be scapegoating Mr. Walsh, who was on the front lines trying his best to do whatever he could to help the Veterans of the Holyoke Soldiers Home, including asking for help from state officials and the National Guard, which arrived much too late,” Bennett said.
An independent government report released in June claimed that Walsh was not qualified to operate a long-term care facility and alleged that “substantial errors and failures” led to the deaths.
Operators of the Holyoke Soldiers’ Home also were hit with a proposed class-action lawsuit in mid-July, seeking more than $175 million in damages.
More criminal cases expected
The announcement of charges isn’t surprising given clear statements by state and federal regulators that there would be criminal investigations with a focus on nursing homes as a result of COVID-19, according to Brandon K. Essig, a former assistant U.S. attorney and partner at Lightfoot, Franklin & White LLC.
“It will be interesting to see how this case evolves, as much of the conduct at issue occurred in April of 2020 when the pandemic was peaking and the medical science about how to handle the risk was evolving, sometimes day to day,” Essig told McKnight’s Long-Term Care News on Friday.
“I do think it is likely the first of what will be multiple criminal charges across the county related to nursing home care during the pandemic,” he added.
Essig explained that the case appears to have arisen from a parallel administrative investigation and then a civil class-action lawsuit — that resulted in a public spotlight on the facility and the defendants.
“Those are occurring around the country as we speak, so more charges will come,” he said.
“Most nursing home operators that face this risk are already under investigation, but all should be doing a self-analysis of how they handled the pandemic to both assess the risk that they might become subject to such an enforcement action and to develop compliance protocols from lessons learned,” he explained.
Essig recommended that nursing homes be both proactive and transparent with regulators.
“Showing that you have identified shortcomings but have taken steps to resolve issues going forward can go a long way and can mitigate regulatory enforcement actions. Such mitigation can, in turn, help with civil lawsuits,” he said.