In a Veterans Day tribute to those who served, Governor Charlie Baker called for more than gratitude: “Let’s love them back for what they’ve done, who they are, what they stand for, and what they’ve meant for all of us.’’
That’s nice. But what about legal accountability for the 76 veterans who died of COVID-19 at the Soldiers’ Home in Holyoke in the spring of 2020? It remains elusive.
Right before Thanksgiving, Hampden Superior Court Judge Edward J. McDonough Jr. dismissed all criminal charges against two former top officials at the home. The indictments, brought by Attorney General Maura Healey, followed from a decision to combine two dementia units and put healthy veterans in the same unit as possibly infected ones — what the AG described as “reckless from an infection control perspective.’’ But in his ruling, McDonough said there was no “reasonably trustworthy evidence’’ that the fateful choice by Bennett Walsh, the former superintendent of the facility, and Dr. David Clinton, the former medical director, to combine those two units caused any of the five veterans named in the indictment to contract the coronavirus. McDonough also said that bodily injury and neglect charges brought under the state’s elder abuse laws are intended to apply only to people who provide direct care, not to administrators. Under that narrow interpretation of the law, Walsh and Clinton were off the hook.
Ted Bassett, a personal injury lawyer with the Worcester firm Mirick O’Connell, told me “the bugaboo’’ with COVID cases is trying to prove where the virus is contracted. Regarding McDonough’s definition of who can be held criminally responsible, Bassett said: “I would think the criminal law applies to all of us. . . . I don’t think it would matter if you are a doctor or an administrator or whatever. That surprises me, if that’s the basis of the decision.’’
If an appeal is not an easy call, that makes a pending civil rights class action suit even more important. “Assuming there isn’t a reconsideration of the indictments, and that there’s no appeal or reversal, our lawsuit is the only remaining avenue to accountability for the families of the veterans who died at the Soldiers Home,’’ said attorney Thomas Lesser, who with his partner, Michael Aleo, represents the plaintiffs. Defendants include Walsh and Clinton; Francisco Ureña, the former secretary of Veterans’ Services; and Health and Human Services Secretary Marylou Sudders. The suit, filed in federal district court in Springfield, states that while the veterans residing at the Soldiers’ Home “kept their promise to serve their country, the Commonwealth did not keep its promise to protect and keep them safe from harm when they were unable to care for themselves.’’ It describes “isolating suspected cases of COVID-19’’ as “epidemiology 101,’’ and while the Soldiers’ Home “received clear directives to that effect,’’ it didn’t follow them.
The lawsuit points out that what happened next was avoidable. An investigation by attorney Mark Pearlstein, commissioned by Baker, describes a series of “utterly baffling’’ decisions that led to the veteran deaths, including the combining of the dementia units. During testimony before a special legislative oversight committee, Sudders said, “We left staff on the front lines without the clinical and management oversight and support to manage through a pandemic.’’ The report by the oversight committee also highlighted underlying governance failures that led to a preventable tragedy.
As for Baker, he held a press conference after the release of the Pearlstein report, during which he referred to the Holyoke situation as “truly horrific and tragic.’’ Ticking off the Pearlstein findings that included the combining of the two units, and creation of “deplorable conditions,’’ he described “a total failure of leadership’’ and said “our administration did not properly oversee the superintendent and his team.’’ Baker also interviewed Walsh for the superintendent’s job — a meeting he later said he “forgot’’ about. The governor isn’t named as a defendant, but what about moral accountability? And how should that be conveyed?
So far, Walsh and Clinton have lost their jobs, and Ureña resigned. The state has allocated money for a new Soldiers’ Home, and lawmakers are considering governance changes for the facility. The civil lawsuit seeks $176 million in damages, but there’s a long legal road ahead. In other tragedies, such as the Boston Marathon bombing, a relief fund was established to compensate victims and their families.
Without more accountability, gratitude and love for veterans are just pretty words.
Joan Vennochi can be reached at firstname.lastname@example.org. Follow her on Twitter @joan_vennochi.