Some weeks after the Governor of Massachusetts declared a state of emergency on account of the spread of the Covid-19, the decision-making authorities of a Soldiers’ Home – having acknowledged a Covid-related staffing shortage issue – directed their staff to consolidate two floors of elderly veterans onto one floor.
As a result, 42 disabled veterans were crowded into a locked space designed to house at most 25 patients. It was reported that those veterans were placed in beds less than two feet apart and were left without proper food and hydration. Those with Covid symptoms were intermingled with those without. Indeed, this situation ran against infection control protocols. Several veterans died at the facility for having contracted the virus.
In September 2020, the superintendent and the medical director of the Soldiers’ home were indicted for elder neglect by the grand jury (the elder neglect statute prohibits a caretaker of an elder or person with a disability from wantonly or recklessly committing or permitting another commit abuse, neglect or mistreatment upon such elder or person with disability). However, the competent Superior Court dismissed all charges at the nonevidentiary hearing stage, deeming that “the record before the grand jury did not support a finding of probable cause that the defendants were caretakers [as required to be found guilty] or that the defendants created a substantial likelihood of harm with respect to the named veterans [...] either by increasing the risk that the named veterans would contract covid-19 or by causing their named veterans to suffer dehydration and malnutrition”. The Commonwealth appealed and, by decision of 27 April 2023, the Supreme Judicial Court of Massachusett upheld its claims. First, the Supreme Court held that the defendants were to be considered caretaker within the meaning of the elder neglect statute since they were contractually duty-bound, answerable or accountable for the health, well-being and safety of the elder and vulnerable persons residing at the Soldiers’ Home such that “a reasonable person would believe that defendants’ failure in this regard would adversely affect the physician health of the elder or person with a disability”. This was unequivocally proven by the fact that the defendants had authorized the consolidation indicating that they exercised the authority to control the veterans’ care. Second, the Court highlighted that “to create a substantial likelihood of harm – which was precisely the conduct for which the grand jury had indicted the defendants – “means to engage in a course of behavior that produces a considerable chance or probability that harm will result”. This definition, the Court noted, does not exclude situations where there is a preexisting risk. Indeed, in the Court’s view, even though the veterans had already been exposed to Covid-19 prior to consolidation – the decision to consolidate more than 40 elderly veterans onto one floor designed for one-half that number “produced a more considerable chance or probability that the named veterans would contract covid-19”.
In conclusion, the Court upheld the appeal filed by the Commonwealth and concluded that the defendants had to stand trial.
Reference: Commonwealth vs. David Clinton, Supreme Judicial Court of Massachusetts, 27 April 2023.
