Commonwealth v. Clinton
| Decision Date | 27 April 2023 |
| Docket Number | SJC-13335 |
| Parties | COMMONWEALTH v. DAVID CLINTON (and nine companion cases[1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Heard: January 4, 2023.
Indictments found and returned in the Superior Court Department on September 24, 2020. Motions to dismiss were heard by Edward J. McDonough, Jr., J.
The Supreme Judicial Court granted an application for direct appellate review.
Anna E. Lumelsky, Assistant Attorney General (Kevin Lownds Assistant Attorney General, also present) for the Commonwealth.
Jeffrey J. Pyle (John F.X. Lawler & James W. Lawson also present) for David Clinton.
William M. Bennett (Meredith G. Fierro also present) for Bennett Walsh.
The following submitted briefs for amici curiae:
Judith M. Flynn for Long Term Care Community Coalition & others.
Nina Loewenstein, of New York, & Tatum A. Pritchard for Disability Law Center.
Anna Richardson for Veterans Legal Services.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
The grand jury indicted the defendants, Bennett Walsh and David Clinton, the superintendent and medical director of the Soldiers' Home in Holyoke (Soldiers' Home), respectively, for elder neglect in violation of G. L. c. 265, § 13K (d 1/2) (elder neglect statute), in connection with their alleged failure to provide treatment or services to the veterans there housed. The grand jury heard testimony that, seventeen days after the Governor declared a state of emergency in the Commonwealth because of the COVID-19 pandemic, these decision makers directed their staff to consolidate two floors of elderly veterans, some of whom had dementia, onto one floor. Forty-two disabled veterans, five of whom were named in the indictments (named veterans), were crowded into a locked space designed to house at most twenty-five patients. As one witness told the grand jury, there were "bodies on top of bodies." "[T]ightly packed together and sick," and "coughing on top of each other," the veterans at this State-run facility were left in their "johnnies," were placed in beds less than two feet apart, and were deprived of adequate hydration and food. The grand jury heard that some veterans were nonresponsive; others lay listless, mouths agape. Those with COVID-19 symptoms intermingled with those without. Record-keeping was abysmal. It was, as one witness told the grand jury, "like a war zone." Three days after the decision to consolidate, as many as ten veterans had died from COVID-19.
The grand jury also heard that the consolidation ran against known infection control protocols. Medical best practices at the time recommended isolation of patients who were symptomatic from those who were not. Indeed, we were all being told in the nascent days of the pandemic to remain at a prescribed "social distance" from each other.
And the grand jury were told that this tragedy could have been avoided; the defendants were presented with options that comported with expert advice and infection control guidelines. Clinton, who absented himself from the Soldiers' Home for his own health, was told by the chief operating officer of a nearby hospital that the hospital stood ready, willing, and able to assist. The grand jury heard that Walsh received calls from the same hospital official, but he did not return the calls; and he had daily telephone calls with the Secretary of the Department of Veterans' Services (DVS) to discuss the Soldiers' Home's COVID-19 response, yet he hid the mounting staffing crisis and emergence of COVID-19 symptoms within the Soldiers' Home from the secretary. Instead, the defendants chose silently to consolidate this vulnerable population together without adequate space or sufficient staffing to care for them. Because these facts and other information presented to the grand jury constituted probable cause to believe that the defendants violated the elder neglect statute, the Superior Court judge erred in dismissing the indictments.
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. We conclude only that they will have the opportunity to do so.[2]
We recite the facts presented to the grand jury in the light most favorable to the Commonwealth, see Commonwealth v. Washington W., 462 Mass. 204, 210 (2012), reserving some details for subsequent discussion.
At all relevant times, the Soldiers' Home was a State-run facility for eligible veterans[3] in Holyoke, with a long-term care unit and independent living spaces. The long-term care unit housed veterans needing assistance with activities of daily life, and provided nursing, medication management, and other services.
In March 2020, about 226 veterans lived in the long-term care unit, which was divided among five care centers.[4] "Care Center 1," which was originally split between two floors ("1 North" and "2 North"), housed patients with memory issues, principally dementia, and was locked from the outside.[5] In March 2020, there were forty to fifty veterans in Care Center 1.
At all relevant times, Walsh was the Soldiers' Home superintendent, the "administrative head of the home," a position he had held since 2016. G. L. c. 6, § 71, repealed by St. 2022, c. 144, § 4. See G. L. c. 115A, § 14, inserted by St. 2022, c. 144, § 66.[6] As superintendent, he was vested with the statutory authority to appoint and remove the medical director of the Soldiers' Home. G. L. c. 6, § 71. See G. L. c. 115A, § 14 (c0 . Clinton, who was the medical director, "ha[d] responsibility for medical, surgical[,] and outpatient facilities," as well as for "mak[ing] recommendations to the superintendent regarding the appointments of all physicians, nurses[,] and other medical staff." G. L. c. 6, § 71. See G. L. c. 115A, § 14 (c). The DVS, which at the time was an agency within the Executive Office of Health and Human Services (EOHHS), oversaw the Soldiers' Home. G. L. c. 6A, § 16, as amended through St. 2018, c. 154, § 4. See G. L. c. 6A, § 105, inserted by St. 2022, c. 144, § 9. In March 2020, the secretary of DVS was Francisco Urena.
"On March 10, 2020, the Governor declared a state of emergency to support the Commonwealth's response to the threat of COVID-19." Le Fort Enters., Inc. v. Lantern 18, LLC, 491 Mass. 144, 147 (2023), quoting Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 433, S_.C., 484 Mass. 1029 (2020) .
On March 17, the Soldiers' Home tested a veteran, HM, for COVID-19 because he was showing respiratory symptoms. HM lived on 1 North and had three roommates. He had a tendency to wander in and out of other people's rooms and the common room. The Soldiers' Home chief nursing officer, Vanessa Lauziere, suggested to Clinton that HM be isolated pending the results of the test; Clinton determined not to do so, stating that isolating HM was a "moot point" because HM was in Care Center 1, a locked dementia unit that was isolated from the Soldiers' Home's other units.
On March 21, HM's COVID-19 test results showed that he was positive for COVID-19. Lauziere reported the result to Walsh and Clinton. Clinton told Lauziere that HM should be isolated and that other symptomatic veterans should be tested. HM's roommates were moved from HM's room in 1 North to other rooms. Lauziere suggested that HM be moved from 1 North to one of the Soldiers' Home's COVID-19 isolation spaces, but Clinton said that patients in 1 North had already been exposed and that moving a wandering patient out of the locked unit would further compromise the facility. Walsh informed the staff of HM's positive test, and many staff members became concerned.
In the days that followed, as more veterans showed symptoms of COVID-19, staff members absented themselves from work at increasing rates because they either had contracted COVID-19 or feared they would. Clinton quarantined at home for about a week, stating that he had developed respiratory issues on March 21, that he was in a high-risk population due to his age, and that he could work from home. Other doctors also spent less time than usual at the Soldiers' Home because Clinton told them that they were at high risk due to their age and advised them to minimize their time at the facility.
Carl Cameron, the chief operating officer of Holyoke Medical Center (HMC), which was located about a mile from the Soldiers' Home, became concerned following the admission of Soldiers' Home patients to the HMC emergency department. During the week of March 23, Cameron twice called Walsh to inquire whether the Soldiers' Home required assistance in connection with its COVID-19 response; Walsh did not return Cameron's calls. Cameron also called Clinton directly on Clinton's cell phone. During two telephone calls, which likely took place on March 25 and March 26, Clinton told Cameron about the Soldiers' Home's struggle with staff contracting COVID-19. The grand jury heard testimony that Clinton reported to Cameron that the Soldiers' Home was "okay" and that they were trying to secure additional personal protective equipment (PPE). Clinton did not indicate that the Soldiers' Home was in "dire straits" regarding staffing, and Cameron did not sense any panic in Clinton's voice.
Nevertheless Cameron "reiterated to . . . Clinton that if the Soldiers' Home needed help or they wanted to hospitalize veterans, . . . Clinton should reach out to . . . Cameron so that he could help manage the [e]mergency [r]oom." However, Clinton declined the offer of assistance; importantly, Clinton did not inquire whether he could transfer veterans --symptomatic or asymptomatic --...
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