Commonwealth v. Clinton ( 2023 )

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SJC-13335
COMMONWEALTH vs. DAVID CLINTON
(and nine companion cases1).
Hampden. January 4, 2023. - April 27, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Grand Jury. Practice, Criminal, Grand jury proceedings,
Indictment. Probable Cause. Evidence, Grand jury
proceedings. Wanton or Reckless Conduct. Veteran.
Nursing Home. Statute, Construction. Words, "Caretaker,"
"Create a substantial likelihood of harm."
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.
1 Four against David Clinton, and five against Bennett
Walsh.
2
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.
WENDLANDT, J. 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
3
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
4
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
1. Background. 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.
a. The Soldiers' Home. At all relevant times, the
Soldiers' Home was a State-run facility for eligible veterans3 in
Holyoke, with a long-term care unit and independent living
2 We acknowledge the amicus briefs submitted by the
Disability Law Center; the Long Term Care Community Coalition,
Dignity Alliance Massachusetts, and the Disability Policy
Consortium; and Veterans Legal Services.
3 To be eligible, veterans must have served 180 days of
military service; have served ninety days of military service,
one of which was during wartime; have received a purple heart;
or have a service-related disability.
5
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 (c). Clinton, who was the medical director,
"ha[d] responsibility for medical, surgical[,] and outpatient
4 Soldiers' Home staff were hired for particular care
centers, for example, Care Center 1, but would at times be asked
to "float," i.e., work temporarily in other care centers.
5 Veterans in Care Center 1 were typically housed four to a
room.
6 Effective March 1, 2023, G. L. c. 6, § 71, was repealed
and replaced by G. L. c. 115A, § 14. Our disposition would be
the same with respect to the new statutory language.
6
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.
b. The COVID-19 outbreak. "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,
7
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.
8
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 -- to the HMC, and he did not ask
9
for other types of support from HMC, such as nursing staff or
PPE. Cameron did not hear back from Walsh or Clinton after this
call.
By March 27, about one day after Cameron volunteered HMC's
assistance, the staffing shortage at the Soldiers' Home reached
critical levels. On March 27 or one to two days before then,
the chief of staff of DVS recommended to Walsh that he contact
HMC for assistance. Walsh did not do so.
At some point in March, Urena had instituted 10 A.M. daily
telephone calls with Walsh and others to discuss COVID-19-
related issues. Walsh provided updates to Urena, including
about the preparation of COVID-19 isolation rooms at the
Soldiers' Home and HM's COVID-19 test. Walsh told Urena that HM
had been isolated from the other veterans while the test was
pending, even though HM had not been. At no time before March
27, and even during a call on the morning of March 27, did Walsh
disclose to Urena that there was any problem with staffing
levels at the Soldiers' Home.
After having been absent for about a week, Clinton returned
to the Soldiers' Home on March 27. That morning, Lauziere
expressed her alarm about the staffing crisis to EOHHS personnel
and suggested that the National Guard be brought in to help.
Walsh made a request for National Guard assistance to EOHHS and
DVS, which was denied. When Urena heard about the request, he
10
was "in shock"; Walsh had not mentioned it during their call
that morning and had not previously reported any staffing
challenges.
c. The consolidation. On March 27, Walsh, Clinton,
Lauziere, and others met to discuss the staffing crisis. A
proposal was made to address the staffing shortage issues by
consolidating the two floors of Care Center 1. Under the plan,
approximately forty-six veterans would be placed on one
consolidated floor, 1 North, which was designed to hold twenty-
five beds. When Lauziere questioned whether consolidation was a
viable option, Clinton assured her that it was, reasoning that
the two floors were self-contained and that everyone housed
there had already been exposed to COVID-19. Neither Walsh nor
Clinton raised the possibility of sending veterans to the HMC or
other nearby health care facilities, or shared that Cameron had
offered that option. According to Lauziere, she would have
pursued the option had it been presented to her.
Without knowing about HMC's offer of assistance, Lauziere
and others commenced execution of the decision to consolidate
the patients onto one floor. Veterans were grouped loosely by
COVID-19 status;7 nine veterans (including the named veterans)
7 According to Lauziere, the veterans were categorized as
follows: veterans who had not been tested or had not
experienced any symptoms; veterans who were symptomatic and had
11
who had been exposed to COVID-19, but had not been tested, and
who purportedly were asymptomatic8 were packed into the dining
room. Lauziere, who did not have the requisite authority to
consolidate the floors without approval from Walsh and Clinton,
disclosed the detailed plan to Walsh, who declined to evaluate
it or to review it with Clinton. Walsh knew that there were
COVID-19 positive veterans on both floors, but he considered the
detailed execution of the plan a medical decision as to which he
deferred to Clinton. When a social worker raised concerns about
the consolidation plan, the social worker was told that all of
the veterans involved had already been exposed to COVID-19.
According to staff members, the situation on 1 North after
consolidation was "awful"; there were "bodies on top of bodies"
and "[i]t was just everyone sitting right next to each other,
just . . . coughing on top of each other," "like a war zone."
Some veterans were left unclothed, wearing only their hospital
johnnies. The veterans did not wear PPE or masks. Beds and
rooms were mislabeled, bearing the wrong veterans' names, and
there were insufficient outlets to supply power to each of the
veterans' automatic beds, especially in the dining room, which
positive COVID-19 test results; symptomatic veterans who had
pending results; hospice veterans; and veterans nearing death.
8 As discussed infra, the Commonwealth's experts testified
that some of these veterans were likely symptomatic.
12
had only one outlet. After the consolidation, veterans did not
receive sufficient medication, food, or fluids.
In terms of infection control, staff testified that there
was no protection between the rooms with symptomatic or COVID-19
positive veterans and the dining room; the doors were left open.
Staff were not instructed to isolate symptomatic veterans from
the asymptomatic veterans in the dining room, or to change PPE
between the bedrooms and the dining room. Veterans of the
various rooms, including those who were COVID-19 positive,
commingled in the day room and shared the four bathrooms on 1
North. By March 30, eight to ten veterans at the Soldiers' Home
had died from COVID-19.
d. Arrival of the National Guard. On March 30, because of
the catastrophic conditions at the Soldiers' Home, EOHHS placed
Walsh on administrative leave and announced the creation of a
command center, led by Valenda Liptak, the then chief executive
officer of Western Massachusetts Hospital in Westfield, who
assumed Walsh's duties. The National Guard arrived within a
day.
Upon her arrival at the Soldiers' Home, Liptak toured the
facility, focusing on 1 North. She walked through the dining
room and saw "confusion," "mayhem," and "disarray." She saw
veterans with respiratory issues and veterans who were "actively
dying." It was not apparent how the veterans had been arranged
13
from room to room. Some veterans were in beds –- which were
less than two feet apart from one another –- and some were
wandering. Most veterans were either wearing johnnies or were
half-dressed. There were not enough staff members to feed or
dress the veterans. Two veterans told her they were hungry.
She also immediately noted the inconsistent use of PPE across
the staff; some staff members wore masks, gloves, and gowns,
while others did not.
The incident commander, who had been a nurse for thirty-
five years and toured 1 North with Liptak, described it as an
image she would "never forget." She had "never seen anything
like [it]." Veterans were "wall to wall" in the common area.
Those in the dining room were "tightly packed together and
sick"; some were nonresponsive, and some lay on their backs with
their mouths open. Cross-contamination, she observed, was
everywhere.
The incident commander found no evidence that the veterans
were being assessed regularly. The records were incomplete and
disorganized. The Soldiers' Home did not have a total count of
veterans on 1 North, and the new team did not have accurate
information about the whereabouts of certain veterans within the
facility. Clinton told them that he and the other doctors had
not been going to 1 North because the doctors were considered
14
"high risk"; instead, nurses were assessing the patients and
updating the doctors.
Liptak's team's first concern was the immediate need to
"separate and hydrate" the veterans. They consulted infection
control specialists, who advised Liptak to find a unit for
COVID-19 negative patients, to shut down open kitchens, to
encourage more frequent hygiene, and to standardize PPE use.
Liptak's team tested every veteran for COVID-19 and then began
to separate them based on their test results. Meanwhile, 180
National Guard members focused on hydrating and feeding the
veterans.
On April 3, about forty veterans who tested negative were
sent to a satellite space at HMC and another twenty were sent to
the emergency departments at HMC or Baystate Medical Center
(BMC). HMC eventually had three different units dedicated to
Soldiers' Home patients. One-half of the veterans who were
transferred eventually died from COVID-19.
According to the chief executive officer of HMC, if Walsh
or Clinton had indicated that they were experiencing severe
staffing shortages or an outbreak, HMC would have been able to
accommodate those veterans. The senior director of care
management at BMC said that BMC, too, had "plenty of capacity
for COVID[-19] patients who needed admission to the hospital"
during the week of March 23, when Walsh and Clinton instead
15
decided to consolidate the veterans, but that she was not aware
of anyone from the Soldiers' Home contacting her in mid- to late
March asking for help.
e. Expert testimony. The Commonwealth presented the
testimony of two experts to the grand jury. Dr. Asif Merchant
was the chief of geriatrics and extended care at Newton-
Wellesley Hospital, partner at New England Community Medical
Services, medical director at a few nursing care facilities, and
clinical professor at Tufts School of Medicine. He reviewed the
medical records for the nine veterans who were moved to the
dining room on 1 North on March 27, as well as the floor plan
for the unit, testing results, nursing notes, a patients census,
and materials from interviews. He testified that the
consolidation of the two floors of Care Center 1, and the
aftermath of the consolidation, increased the likelihood of harm
to the named veterans because, inter alia, they were placed into
a closely packed dining room with other veterans (unnamed
veterans), at least three of whom were likely symptomatic.
Dr. Ronald Rosen was the chief of geriatrics at the North
Shore Medical Center in Salem and was previously medical
director at North Shore Physicians Group Extended Care. Rosen
also reviewed the veterans' medical records and other relevant
documents; he concluded that at least three of the veterans who
were relocated to the dining room per the consolidation plan
16
were symptomatic of COVID-19 prior to consolidation. He
testified that housing symptomatic individuals with asymptomatic
veterans violated basic infection control practices and
increased the risk that the named veterans in the dining room
would contract COVID-19. Further details of both experts'
testimony are discussed infra.
2. Procedural history. In September 2020, the grand jury
returned five indictments for elder neglect in violation of the
elder neglect statute, G. L. c. 265, § 13K (d 1/2), one for each
named veteran, against each defendant. The defendants filed
motions to dismiss the indictments. A Superior Court judge held
a nonevidentiary hearing and dismissed all the charges.9 The
judge concluded that the record before the grand jury did not
support a finding of probable cause that the defendants were
"[c]aretaker[s]" as defined in G. L. c. 265, § 13K (a), or that
the defendants created a substantial likelihood of harm with
respect to the named veterans under G. L. c. 265, § 13K (d 1/2),
either by increasing the risk that the named veterans would
contract COVID-19 or by causing the named veterans to suffer
9 The grand jury also returned five indictments against each
defendant for violation of G. L. c. 265, § 13K (e), alleging
that the defendants permitted serious bodily injury to the named
veterans; these indictments were also dismissed. The
Commonwealth did not appeal from those dismissals.
17
dehydration and malnutrition. The Commonwealth appealed, and we
granted its timely application for direct appellate review.
3. Discussion. a. Standard of review. "In considering a
judge's decision to dismiss for lack of sufficient evidence [to
support an indictment], we do not defer to the judge's factual
findings or legal conclusions." Commonwealth v. Stirlacci, 483
Mass. 775, 780-781 (2020). Rather, our review is de novo.
Commonwealth v. Ilya I., 470 Mass. 625, 627 (2015).
Generally, "a 'court will not inquire into the competency
or sufficiency of the evidence before the grand jury'" so long
as the grand jury have heard sufficient evidence, when viewed in
the light most favorable to the Commonwealth, to warrant a
person of reasonable caution in believing that the identified
defendant has committed each of the elements of the charged
offense. Stirlacci, 483 Mass. at 780, quoting Commonwealth v.
Robinson, 373 Mass. 591, 592 (1977). The "probable cause"
standard is a "'considerably less exacting' standard" than proof
beyond a reasonable doubt, which is required to support a
conviction at trial. Stirlacci, supra, quoting Commonwealth v.
O'Dell, 392 Mass. 445, 451 (1984).
b. Caretakers. The elder neglect statute prohibits a
"caretaker of an elder or person with a disability" from
"wantonly or recklessly commit[ting] or permit[ting] another to
commit abuse, neglect or mistreatment upon such elder or person
18
with a disability." G. L. c. 265, § 13K (d 1/2). The
defendants contend that the term "caretaker" under the statute
applies only to frontline workers, who directly care for elders,
and not to administrative decision makers, like themselves.
i. Decision makers. In interpreting statutes, "[o]ur
primary goal . . . is to effectuate the intent of the
Legislature." Conservation Comm'n of Norton v. Pesa, 488 Mass.
325, 331 (2021), quoting Casseus v. Eastern Bus Co., 478 Mass.
786, 795 (2018).
"[T]he general and familiar rule is that a statute must be
interpreted according to the intent of the Legislature
ascertained from all its words construed by the ordinary
and approved usage of the language, considered in
connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished, to the end that the purpose of its framers
may be effectuated."
Oracle USA, Inc. v. Commissioner of Revenue, 487 Mass. 518, 522
(2021), quoting Commissioner of Revenue v. Gillette Co., 454
Mass. 72, 76 (2009). As such, "our analysis begins with 'the
"principal source of insight into legislative intent"' –- the
plain language of the statute." Patel v. 7-Eleven, Inc., 489
Mass. 356, 362 (2022), quoting Tze-Kit Mui v. Massachusetts Port
Auth., 478 Mass. 710, 712 (2018).
The elder neglect statute defines "[c]aretaker" as
"a person with responsibility for the care of an elder or
person with a disability, which responsibility may arise as
the result of a family relationship, or by a fiduciary duty
imposed by law, or by a voluntary or contractual duty
19
undertaken on behalf of such elder or person with a
disability. A person may be found to be a caretaker under
this section only if a reasonable person would believe that
such person's failure to fulfill such responsibility would
adversely affect the physical health of such elder or
person with a disability. Minor children and adults
adjudicated incompetent by a court of law may not be deemed
to be caretakers under this section." (Emphases added.)
G. L. c. 265, § 13K (a).
The term "responsibility" commonly refers to "[t]he
quality, state, or condition of being duty-bound, answerable, or
accountable." Black's Law Dictionary 1569 (11th ed. 2019). The
term "care" means "charge, supervision," as in "responsibility
for or attention to health, well-being, and safety," i.e.,
"under a doctor's care." Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/care [https://perma
.cc/Q6KX-47YC]. See Black's Law Dictionary, supra at 263
(defining "care" as "[s]erious attention, heed").
Under the elder neglect statute, the "responsibility may
arise" in one of the following manners: "as the result of a
family relationship, or by a fiduciary duty imposed by law, or
by a voluntary or contractual duty undertaken on behalf of such
elder or person with a disability." G. L. c. 265, § 13K (a).
Moreover, the statute further limits the term "caretaker" by a
rule of reasonableness; in particular, "[a] person may be found
to be a caretaker . . . only if a reasonable person would
believe that such person's failure to fulfill such
20
responsibility would adversely affect the physical health of
such elder or person with a disability." Id.
Thus, as it pertains to the defendants, a "caretaker" under
the statute is an individual who contractually is duty-bound,
answerable, or accountable for the health, well-being, and
safety of an elder or person with a disability such that a
reasonable person would believe that the individual's failure in
this regard would adversely affect the physical health of the
elder or person with a disability.10 Nothing in the plain
language limits the term to frontline workers "directly"
responsible for the care of an elder or person with a
disability.11
10The meaning of the statute is plain; contrary to the
defendants' contention, it is not void for vagueness. See
Commonwealth v. St. Louis, 473 Mass. 350, 355 (2015) ("A
criminal statute must define the offense in terms that are
sufficiently clear to permit a person of average intelligence to
comprehend what conduct is prohibited" [quotation and citation
omitted]). "[L]egislative language need not be afforded
'mathematical precision' in order to pass constitutional
muster." Id., quoting Commonwealth v. Reyes, 464 Mass. 245, 249
(2013). "Caretaker" is sufficiently described and is not a term
that sets "a net large enough to catch all possible offenders,
and leave[s] it to the courts to step inside and say who could
be rightfully detained, and who should be set at large," Reyes,
supra, quoting Smith v. Goguen, 415 U.S. 566, 573 n.9 (1974),
and therefore it is not void for vagueness.
11Our construction of "caretaker" to reach decision makers
is consistent with the construction given to similarly worded
statutes by our sister jurisdictions. See, e.g., Estate of
Wyatt, 235 Ariz. 138, 140 (2014), quoting Webster's New
International Dictionary 338 (3d ed. 1976) ("'Care' is
ordinarily understood to mean 'CHARGE, SUPERVISION, MANAGEMENT:
21
Nevertheless, the defendants maintain that the term is
limited to frontline workers, excluding decision makers who
(like them) receive a salary and are responsible, ultimately,
for the care of an elder or person with a disability. Their
argument is grounded in the phrase "[r]esponsibility arising
from a contractual duty," as to which the elder neglect statute
provides: "it may be inferred that a person who receives
monetary or personal benefit or gain as a result of a bargained-
for agreement to be responsible for providing primary and
substantial assistance for the care of an elder or person with a
disability is a caretaker." G. L. c. 265, § 13K (a) (iii). The
defendants contend that this phrase further limits "caretakers"
to "primary" care providers, which in the health care industry
has a specific and distinct meaning –- namely, "a medical
professional (such as a general practitioner, pediatrician, or
nurse) with whom a patient has initial contact and by whom the
patient may be referred to a specialist." Thus, they argue, the
responsibility for or attention to safety and well-being");
Delaney v. Baker, 20 Cal. 4th 23, 26-27 (1999) (elder abuse
statute applies to nursing home administrators); Peterson v.
State, 765 So. 2d 861, 864 (Fla. Dist. Ct. App. 2000)
("'Caregiver' logically encompasses more than just the person or
persons who do the actual physical work of caring for an elderly
or disabled adult. It also reaches those who in fact are
'entrusted' with the responsibility for seeing that an elderly
or disabled adult is being cared for in a proper and humane
manner"); State v. Boone Retirement Ctr., Inc., 26 S.W.3d 265,
274 (Mo. Ct. App. 2000) (affirming elder abuse conviction of
nursing home administrator).
22
term excludes decision makers who do not provide such "primary
care" directly to an elder or person with a disability. We
disagree.
To begin, the statute states that a contractual duty "may"
be inferred where a person is compensated for providing primary
and substantial assistance for the care of an elder or person
with a disability.12 It does not state that such a duty "may
not" arise outside of this context or that such a duty "may
only" arise in such circumstances. By contrast, where the
Legislature intended to limit the scope of "caretaker," it did
so expressly. For example, the statute provides that "[m]inor
children and adults adjudicated incompetent by a court of law
may not be deemed to be caretakers" (emphasis added). G. L.
c. 265, § 13K (a). See id. ("A person may be found to be a
caretaker under this section only if a reasonable person would
believe that such person's failure to fulfill such
responsibility would adversely affect the physical health of
such elder . . ." [emphasis added]).
Given the Legislature's deliberate choice to employ
permissive but nonexclusive language in connection with the
circumstances pursuant to which a contractual duty may be
inferred and its use of mandatory, exclusive language in the
12 The defendants mistakenly contend that this argument was
waived.
23
same statute, we reject the defendants' proposed construction.
See Commonwealth v. Dalton, 467 Mass. 555, 559 (2014) ("Where
the Legislature grants discretion in some circumstances and
denies it in others, the use of the word 'may' contrasted with
the words 'may not' simply clarifies where discretion is granted
and where it is forbidden . . ."); Fredericks v. Vartanian, 529
F. Supp. 264, 268 (D. Mass. 1981), aff'd, 694 F.2d 891 (1st Cir.
1982) (contrasting "may" in statute with "may . . . only if").
Moreover, the defendants' contention that the phrase
"primary and substantial assistance" as used in the statute has
the specific and distinct meaning prescribed to it in the health
care industry is belied by the statute's use of the same phrase
in connection with describing caretaker status arising from a
familial relationship. Specifically, in describing when
"[r]esponsibility arising from a family relationship" may be
inferred, the statute states that
"a husband, wife, son, daughter, brother, sister, or other
relative of an elder or person with a disability is a
caretaker if the person has provided primary and
substantial assistance for the care of the elder or person
with a disability as would lead a reasonable person to
believe that failure to provide such care would adversely
affect the physical health of the elder or person with a
disability" (emphasis added).
G. L. c. 265, § 13K (a) (i). Most such familial caretakers will
not fall within the technical definition of primary care
providers as that term is used in the health care industry; yet
24
the Legislature clearly intended to include familial caretakers
within its scope.
The defendants' reading of this phrase suffers from an
additional flaw. The statute provides that a contractual duty
may arise where an individual is contractually obligated "to be
responsible for providing primary and substantial assistance for
the care of an elder or person with a disability," G. L. c. 265,
§ 13K (a) (iii); it does not state that only those who
contractually agree "to be directly responsible" for such care
fall within its scope. Reading such an additional limitation
into the statutory language is improper. See Commonwealth v.
Newberry, 483 Mass. 186, 195-196 (2019), quoting Commissioner of
Correction v. Superior Court Dep't of the Trial Court, 446 Mass.
123, 126 (2006) ("Courts may not read into a statute a provision
that the Legislature did not enact, nor 'add words that the
Legislature had an option to, but chose not to include'").13
13Our interpretation is consistent with the meaning
ascribed to "caretaker" in the Disabled Persons Protection
Commission (DPPC) statute, G. L. c. 19C, which also addresses
the consequences of abuse of persons with disabilities. See
Ciardi v. Hoffman-La Roche, Ltd., 436 Mass. 53, 62 (2002)
("Statutes addressing the same subject matter clearly are to be
construed harmoniously so as to give full effect to all of their
provisions and give rise to a consistent body of law"). In that
statute, "[c]aretaker" is defined as "a disabled person's
parent, guardian or other person or agency responsible for a
disabled person's health or welfare," G. L. c. 19C, § 1, which
has been construed to "include not only direct care providers
. . . but also those . . . responsible for arranging or
supervising the provisions of care," DPPC Legal Advisory
25
Contrary to the defendants' suggestion, this does not mean
that "caretaker" status applies to anyone in the State chain of
command, no matter how attenuated their connection to the
provision of care to an elder or person with a disability. As
discussed supra, whether an individual is a caretaker is limited
by a rule of reasonableness.14 See G. L. c. 265, § 13K (a) ("A
person may be found to be a caretaker under this section only if
a reasonable person would believe that such person's failure to
fulfill such responsibility would adversely affect the physical
health of such elder or person with a disability" [emphasis
added]).
Given that the meaning of the term "caretaker" is not
ambiguous, we need not examine the legislative history, which in
any event does not appear to support the defendants' proposed
construction.15 See Osborne-Trussell v. Children's Hosp. Corp.,
Memorandum, Definition of a Caretaker Under M.G.L. c. 19C (rev.
Sept. 30, 2017).
14This rule, which applies to all "caretakers" under the
statute, demonstrates that the defendants' concern that any
volunteer or good Samaritan who provides "passing, secondary, or
insubstantial assistance" to an elder would be considered a
caretaker is unwarranted.
15As the Commonwealth notes, the then Attorney General
proposed statutory language adding the elder neglect statute,
St. 2004, c. 501, § 8, to "more effectively prosecute nursing
home supervisors who allow a pattern of abuse and neglect to
occur in the homes" (emphasis added). Attorney General Reilly
Commends Legislature for Passage of Bill to Protect Elderly,
26
488 Mass. 248, 254 (2021), quoting Doherty v. Civil Serv.
Comm'n, 486 Mass. 487, 491 (2020) ("If the statutory language is
clear, 'courts must give effect to its plain and ordinary
meaning and need not look beyond the words of the statute
itself'" [alteration omitted]).
ii. Caretaker analysis for the defendants. The record
before the grand jury supports probable cause that the
defendants were caretakers within the meaning of G. L. c. 265,
§ 13K (a). Each is an individual who contractually is duty-
bound, answerable, or accountable for the health, well-being,
and safety of an elder or person with a disability such that a
reasonable person would believe that the defendants' failure in
this regard would adversely affect the physical health of the
elder or person with a disability.
Walsh was the "administrative head of the home," with
authority to "appoint . . . a medical director, a treasurer and
an assistant treasurer." G. L. c. 6, § 71.16 Clinton, as
medical director, had "responsibility for the medical, surgical
Disabled Citizens from Abuse, Neglect, U.S. State News (Jan. 4,
2005).
16 In support of his conclusion that the superintendent and
medical director were not "caretakers," the judge mistakenly
relied on a 1970 opinion by the then Attorney General
interpreting certain language in G. L. c. 6, § 71, which was
removed subsequently by amendment. See St. 1971, c. 623, § 1.
It has little bearing on the meaning of the version of the
statute at issue in this case or the current statute.
27
and outpatient facilities and . . . [would] make recommendations
to the superintendent regarding the appointments of all
physicians, nurses and other medical staff." Id. Walsh had the
authority to overrule Clinton's decisions. Lauziere reported to
both defendants, evidencing their authority to oversee and
direct nursing decisions.
Moreover, the defendants authorized the consolidation,
indicating that they exercised the authority to control the
veterans' care. Walsh provided updates regarding the Soldiers'
Home's COVID-19 response to Urena, talking with him daily to
discuss COVID-19 protocols and conditions at the Soldiers'
Home.17
Clinton exercised caretaking authority by, inter alia,
rejecting HMC's offers of assistance; participating in the
decision to create a COVID-19 isolation space at the Soldiers'
Home; deciding not to isolate HM when his COVID-19 test was
pending, and then to isolate HM once he tested positive; and
supervising doctors who cared for veterans. On this record, the
17The steps that Liptak immediately took when she replaced
Walsh -– assessing the state of the building, convening meetings
with infection control experts, organizing a testing and COVID-
19 status cohorting regime for veterans, and sending veterans to
HMC and BMC -- which were all steps that Walsh could have taken
in the weeks and days leading to his replacement, also
demonstrated the superintendent's caretaking authority.
28
grand jury could find that there was probable cause that both
defendants were caretakers.
c. Substantial likelihood of harm. The defendants also
challenged the grand jury's finding of probable cause that they
"create[d] a substantial likelihood of harm" by authorizing the
consolidation. General Laws c. 265, § 13K (d 1/2), provides
that "[w]hoever, being a caretaker of an elder or person with a
disability, wantonly or recklessly commits or permits another to
commit abuse, neglect or mistreatment upon such elder or person
with a disability, shall be punished." The statute defines
"[n]eglect" as "the failure to provide treatment or services
necessary to maintain health and safety and which either harms
or creates a substantial likelihood of harm" (emphasis added).
G. L. c. 265, § 13K (a). The theory presented to the grand jury
focused on the evidence that the defendants "created a
substantial likelihood of harm" to the named veterans by
increasing the risk that the named veterans would contract
COVID-19, and by causing the named veterans to become dehydrated
and malnourished.
Again, "our analysis begins with 'the "principal source of
insight into legislative intent"' –- the plain language of the
statute." Patel, 489 Mass. at 362, quoting Tze-Kit Mui, 478
Mass. at 712. To "create" is "to bring into existence," to
"cause," or "to produce or bring about by a course of action or
29
behavior." Merriam-Webster Online Dictionary, https://www
.merriam-webster.com/dictionary/create [https://perma.cc/N5B5
-BSMM]. The common meaning of "substantial" is "considerable in
quantity," or "significantly great." Merriam-Webster Online
Dictionary, https://www.merriam-webster.com/dictionary
/substantial [https://perma.cc/RLV8-HHUV]. "Likelihood" refers
to "the chance that something will happen," or "probability."
Merriam-Webster Online Dictionary, https://www.merriam
-webster.com/dictionary/likelihood [https://perma.cc/E6N5-CLMV].
See Commonwealth v. Boucher, 438 Mass. 274, 276 (2002) ("As
commonly used and understood, 'likely' is a word that
encompasses a range of probabilities depending on the specific
context in which it is used. We conclude that something is
'likely' if it is reasonably to be expected in the context of
the particular facts and circumstances at hand"). Consequently,
to "create[] a substantial likelihood of harm" means to engage
in a course of behavior that produces a considerable chance or
probability that harm will result.
i. Increased risk that the named veterans would contract
COVID-19. In the light most favorable to the Commonwealth, the
Commonwealth presented "sufficient facts to warrant a person of
reasonable caution in believing," Stirlacci, 483 Mass. at 780,
quoting Commonwealth v. Levesque, 436 Mass. 443, 447 (2002),
that the defendants' decision to consolidate more than forty
30
elderly veterans onto one floor designed for approximately one-
half that number, and particularly the decision to pack nine
veterans into the dining room on that consolidated floor,
produced a more considerable chance or probability that the
named veterans would contract COVID-19.18
Notably, Dr. Merchant testified that the decision to
consolidate the floors violated basic infection control
guidelines, which provided that patients who are symptomatic or
who are suspected to be symptomatic should be separated from
patients who are not showing symptoms. Consolidation, Merchant
testified, created a "recipe for a higher-risk situation"
because each named veteran shared a room with more veterans than
before the consolidation, their beds were much closer to one
another, veterans wandered in and out of rooms on the floor,
staff caring for COVID-19 positive patients came into the dining
room, staff did not use PPE correctly, and the veterans on the
consolidated floor -- whether they were COVID-19 positive,
showed COVID-19 symptoms, or were asymptomatic -- all shared the
same bathrooms.
Moreover, Merchant reviewed the medical records of the nine
veterans who were moved to the dining room on March 27, and
18Of course, the defendants should not be held to COVID-19
infection control standards other than the standards applicable
at the time they made the decision to consolidate.
31
opined that, on that day, at least three of the unnamed veterans
were likely symptomatic. Placing the named veterans into a
closely packed dining room with the symptomatic veterans, Dr.
Merchant opined, increased the risk of one or all of the named
veterans contracting COVID-19. Three of the named veterans -–
GE, RT,19 and AP –- all tested positive on tests administered on
March 31, four days after the consolidation; Merchant concluded
that, given the incubation period for COVID-19, all three
possibly contracted COVID-19 after being transferred to the
dining room.
Dr. Rosen also opined that three of the unnamed veterans
were symptomatic before consolidation, and concluded that
"cohort[ing]" them with the other veterans in the dining room –-
including the named veterans -- went against "not only common
sense but basic infection control practices where you try to
separate and isolate those that are more likely to be contagious
from those that [are not]";20 in Rosen's view, the consolidation
19 RT was transferred to HMC on April 11 and passed away.
20 Dr. Rosen testified:
"[E]ven though all the veterans had been exposed it didn't
mean that they had all already contracted COVID[-19]. In
fact, we see that two of [the] veterans never tested
positive for COVID[-19]. So at that time test results were
not available for these veterans. So it just goes against
basic principles of infection control[, specifically,] that
you have to cohort people based on their risks and your
medical decision making."
32
increased the risk that the named veterans in the dining room
would contract COVID-19. Rosen concluded that the dining room
was "almost an incubator for COVID[-19]"; beds were placed very
close together without barriers between them, staff had
insufficient knowledge of or poor access to PPE, doors were
open, and residents comingled within the lounge area. The
consolidation, Rosen opined, made "a very high-risk situation
. . . even more high-risk."
Soldiers' Home staff also testified that consolidation
violated known infection control practices and increased the
risk that veterans would contract COVID-19. For example, a
certified nursing assistant testified that she was "extremely
shocked and surprised that they would put more people" on 1
North because it would result in veterans "on top of each other
. . . shoulder to shoulder." The state of the floor after
consolidation "was the complete opposite of everything [she]
learned" in nursing school. Additionally, Liptak testified that
she thought consolidation "increas[ed] the odds" that COVID-19
negative veterans would contract COVID-19 by "exposing them to
multiple people that were probably already COVID[-19] positive."
The defendants contend that because the record also showed
that the veterans housed on the consolidated floor already had
been exposed to COVID-19 prior to consolidation, they did not
"create" a substantial risk of harm; in their view, the risk of
33
harm already existed, and any increased risk caused by the
consolidation is not covered by the statute. As set forth
supra, however, to "create a substantial risk of harm" requires
that the caretaker engage in a course of behavior that produces
a more considerable chance or probability that harm will result.
This definition does not exclude situations where there is a
preexisting risk; the baseline comparator is not limited to
hypothetical, risk-free situations existing ex ante.21 The
inquiry whether the defendants "created" a substantial risk of
harm is focused on the defendants' conduct and whether that
conduct produced a more considerable chance or probability that
harm would result than would have existed in the absence of that
conduct.
Indeed, the defendants' construction makes little sense in
the context of the provision of care, especially in connection
with care for the elderly and patients with disabilities -- a
population that is already at risk for multiple health
21Conduct may be criminalized where it increases an already
present risk. See, e.g., Commonwealth v. Carter, 481 Mass. 352,
362-363 (2019), cert. denied, 140 S. Ct. 910 (2020) (affirming
involuntary manslaughter conviction where defendant "creat[ed] a
situation where there [was] a high degree of likelihood that
substantial harm would result" to her boyfriend by encouraging
him to get back into truck filled with carbon monoxide after he
had saved himself from suicide attempt); Commonwealth v. Hadley,
78 Mass. App. Ct. 405, 407-410 (2010) (defendant convicted of
battery had "created a high degree of likelihood of substantial
harm" to victim with serious preexisting medical conditions,
including enlarged spleen, by kicking spleen).
34
conditions. Here, the record supports probable cause that the
defendants' decision to consolidate the veterans on one floor
without adequate spacing between patients, which resulted in
veterans coughing on each other, and housing symptomatic
veterans with asymptomatic veterans, like the named veterans,
produced a more considerable chance or probability that harm
would result to the named veterans.22
ii. Dehydration and malnourishment. The defendants'
contention that the medical records for the named veterans do
not support probable cause that the named veterans were
dehydrated or malnourished fares no better. The record showed
that, following consolidation, the veterans' medical records
were "incomplete and disorganized," containing only "sparse,"
"brief" information. The grand jury were warranted in
concluding that the medical records did not tell the complete
story of the named veterans.
22We have recognized that "particularly [for] the elderly
. . . , [COVID-19] poses a substantial likelihood of serious
illness or death." Foster v. Commissioner of Correction (No.
1), 484 Mass. 698, 702, S.C., 484 Mass. 1059 (2020) and 488
Mass. 643 (2021). Clinton correctly asserts that prosecutors
will need to show, at any subsequent trial, that the decision to
consolidate resulted in an increased risk; at this stage, we
conclude only that the record supported probable cause that the
defendants' consolidation order created that increased risk.
Clinton's contention that two of the named veterans were
not harmed by the decision to consolidate is inapposite. The
statute requires only that the consolidation decision created a
substantial risk of harm.
35
The grand jury could rely on the ample testimony that the
veterans on the consolidated floor were underfed and dehydrated.
One social worker testified that veterans on the consolidated
floor were not receiving sufficient hydration or food and that
the named veterans were dehydrated and malnourished. When
Liptak arrived, two veterans told her they were hungry, and she
observed that there was insufficient staff to feed all the
veterans on the floor. Indeed, her first priority when she
arrived was to "separate and hydrate" the veterans.
Another witness testified that, when he visited his father
on March 27, his father was so dehydrated that he did not think
his father was receiving any hydration. Together, the
information before the grand jury warranted a finding of
probable cause that the consolidation produced a more
considerable chance or probability that the named veterans would
become dehydrated and malnourished. See Stirlacci, 483 Mass. at
780, quoting O'Dell, 392 Mass. at 451 ("Probable cause is a
'considerably less exacting' standard than that required to
support a conviction at trial").
d. Wantonly or recklessly. Last, the Commonwealth
presented sufficient evidence to support probable cause that, in
consolidating the floors, the defendants did so "wantonly or
recklessly." G. L. c. 265, § 13K (d 1/2). "Wanton or reckless
conduct is 'intentional conduct, by way either of commission or
36
of omission where there is a duty to act, which conduct involves
a high degree of likelihood that substantial harm will result to
another.'" Commonwealth v. Earle, 458 Mass. 341, 347 (2010),
quoting Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).
"Wanton or reckless conduct amounts to what has been variously
described as indifference to or disregard of probable
consequences." Commonwealth v. Godin, 374 Mass. 120, 129
(1977), cert. denied, 436 U.S. 917 (1978), quoting Welansky,
supra.The record before the grand jury showed that consolidation
was inconsistent with infection control best practices known in
March 2020. Dr. Merchant testified that, although COVID-19
infection control guidance has changed throughout the pandemic,
even in March 2020 when the defendants decided to consolidate
the veterans, the guidance was to separate patients suspected of
having COVID-19 from asymptomatic patients; it was a standard
component of "basic infection control guidelines for many
diseases." The grand jury also heard testimony that, according
to an epidemiologist with the bureau of infectious disease at
the Department of Public Health (DPH):
"[A]s early as March 4[, 2020,] it was firmly accepted
among the various guidances [sic] that residents of
different COVID[-19] statuses should not be grouped
together. This has been firm and consistent guidance from
the beginning and [has not] changed since the onset of the
pandemic. The guidance has been to create physical
37
separation between positive patients and asymptomatic
patients."
In fact, Clinton apparently recognized the significance of
the exposure risk, exercising particular caution with respect to
himself and the doctors at the Soldiers' Home; on the same day
that HM tested positive for COVID-19, Clinton began quarantining
at home for a week because he was in a high-risk population --
like the veterans in his care –- and he advised other doctors to
minimize their time at the Soldier's Home as well. Yet the
grand jury heard testimony indicating that, despite protecting
himself and fellow doctors against the risk of exposure, Clinton
did not employ the same caution towards the veterans. See
Commonwealth v. Carter, 474 Mass. 624, 631 (2016), quoting
Commonwealth v. Pugh, 462 Mass. 482, 497 (2012) (conduct was
subjectively wanton or reckless if "grave danger to others" was
apparent and "defendant . . . chose[] to run the risk rather
than alter [his] conduct so as to avoid the act or omission
which caused the harm").
The grand jury also heard that determining the available
resource in the community was critical, even in March 2020, in
planning for infection disease control. Dr. Rosen testified
that, in his opinion, when planning for a surge of the type
anticipated in March 2020:
"One of [the] things you do is you plan out and you go to
the community and you utilize all the resources you could
38
have in the community. That's what the [Centers for
Disease Control] recommended. So you would contact local
hospitals and ask how they can help. Can they –- do they
have any extra [PPE], do they have any extra staff, can
they –- can they take other residents[?] You would contact
all your other local nursing homes. Do you have capacity
to help us cohort[?]"
The grand jury also heard testimony that the defendants had
options that would have allowed them to conform the veterans'
care to the then-existing infection control protocols. Cameron,
the chief operating officer of HMC, called Walsh twice during
the week of March 23 and never received a response.
Cameron also called Clinton directly, and over the course
of two subsequent telephone calls, Cameron told Clinton that if
the Soldiers' Home needed help, or if it wanted to hospitalize
veterans, Clinton should contact Cameron. According to Cameron,
Clinton did not accept the offer of assistance; he did not
indicate that COVID-19 was a problem at the Soldiers' Home, ask
whether he could transfer veterans to HMC, or ask for additional
resources from HMC such as nursing help or any PPE. Moreover,
according to the chief executive officer of HMC, if either
defendant had indicated that he was experiencing staffing
shortages or an outbreak, HMC would have been able to
accommodate those veterans seven to eleven days before April 3.
Moving veterans from the Soldiers' Home to HMC, the chief
executive officer stated, would have required DPH's approval;
that approval, the grand jury were told, was received on the
39
"same day" as it was requested. BMC, too, had "plenty of
capacity for COVID[-19] patients who needed admission to the
hospital" during the week of March 23, but BMC did not receive
any outreach from the Soldiers' Home before the consolidation.
Rather, veterans were not sent to HMC or BMC until April 3.23
The grand jury thus heard testimony that would warrant
finding probable cause that the defendants had a duty to act in
accordance with the infection control practices that the
Commonwealth's experts testified to be known by medical
professionals in March 2020, and that in declining to pursue
available options and instead consolidate the two floors, the
defendants engaged in intentional conduct of omission that
involved a high degree of likelihood that substantial harm would
result. See Earle, 458 Mass. at 347. See also Commonwealth v.
Gallison, 383 Mass. 659, 665-666 (1981) (evidence of parent's
"inaction in light of her child's vomiting, diarrhea, high
23The testimony regarding the available alternatives to
consolidation, which the defendants did not pursue, was provided
by an investigator who interviewed these witnesses. This, of
course, did not preclude the grand jury from relying on the
investigator's report in issuing the indictments. See
Commonwealth v. Stevenson, 474 Mass. 372, 376 (2016), quoting
O'Dell, 392 Mass. at 450-451 ("We have consistently and without
notable exception held that 'an indictment may be based solely
on hearsay'"). At this stage, we do not "inquire into the
competency or sufficiency of the evidence before the grand
jury," so long as the grand jury "hear[d] sufficient evidence to
establish the identity of the accused . . . and probable cause
to arrest him . . . for the crime charged" (quotation and
citations omitted). Stirlacci, 483 Mass. at 780.
40
fever, subsequent unconsciousness, and breathing failure," if
believed, "would warrant the jury in concluding that the
defendant should have been aware and indeed was aware of the
increased risk of harm and thus [her] failure to remedy the
situation was the kind of conduct which constitutes wanton and
reckless conduct" [citation omitted]).24
4. Conclusion. Based on the foregoing, we reverse the
order allowing the defendants' motions to dismiss.
So ordered.
24The dissent provides a rough roadmap for the defendants
to follow as they marshal a defense that their conduct was not
wanton or reckless, excusing the defendants' decisions and
inactions as either uninformed or merely negligent conduct in
the face of the chaotic realities of the early days of the
pandemic. In short, the dissent finds that the defendants did
the best they could, given the situation with which they were
faced. This, of course, is not the question on appeal.
Instead, we are tasked with the question whether the grand jury
record supports their finding of probable cause. In doing so,
the grand jury were not required to "resolve[] all their doubts"
or to weigh the evidence to assess whether it could "sustain a
conviction" beyond a reasonable doubt (alteration omitted).
Commonwealth v. Arias, 481 Mass. 604, 617-618 (2019), quoting
Commonwealth v. Cartright, 478 Mass. 273, 283 (2017). As set
forth supra, viewed in the light most favorable to the
Commonwealth, the record warrants a person of reasonable caution
in believing that the defendants' actions, and inactions,
involved a high degree of likelihood that substantial harm would
result to the veterans under their care. The record supports
the grand jury's finding that the defendants acted in
contravention of then-existing infectious disease control
protocols and that they failed to pursue then-available options.
At this stage, that is all that is required.
LOWY, J. (dissenting, with whom Cypher, J., joins). I
agree with the court that that there was probable cause that the
defendants were caretakers under the elder neglect statute and
that there was sufficient evidence to support a finding of
probable cause that the defendants' actions created a
substantial likelihood of harm. I dissent because -- even
viewed in the light most favorable to the Commonwealth -- there
was insufficient evidence before the grand jury to support a
finding of probable cause that the defendants acted wantonly or
recklessly, as required to support an indictment.
As is often noted, hindsight is an exact science, but the
protocols in the early days of the COVID-19 pandemic were
anything but. At its core, this prosecution is nothing more
than an exercise in assigning blame with the benefit of
hindsight. A finding of probable cause that the defendants
acted wantonly or recklessly in this case ignores the chaos,
uncertainty, and unknowns present during the earliest days of
the pandemic. Such a finding also fails to recognize the
untenable staffing challenges the Soldiers' Home in Holyoke
(Soldiers' Home) faced during this time.
Probable cause "exists where the facts and circumstances
. . . [are] sufficient in themselves to warrant a [person] of
reasonable caution in the belief that an offense has been . . .
committed" (quotation and citation omitted). Commonwealth v.
2
Coggeshall, 473 Mass. 665, 667 (2016). Context is critical to
the probable cause analysis because "[i]n dealing with probable
cause . . . we deal with probabilities. These are not
technical; they are . . . practical considerations of everyday
life, on which reasonable and prudent [people], not legal
technicians, act" (emphasis added). Commonwealth v. Arias, 481
Mass. 604, 617 (2019), quoting Commonwealth v. Cartright, 478
Mass. 273, 283 (2017). In this case, we are tasked with
evaluating probable cause as to whether the defendants were
wanton or reckless while working with many patients whose
conditions made isolation extremely difficult, and while
simultaneously managing an extraordinarily reduced staff during
the early days of a not yet fully understood pandemic.
As noted by the court, "[w]anton or reckless conduct is
'intentional conduct, by way either of commission or of omission
where there is a duty to act, which conduct involves a high
degree of likelihood that substantial harm will result to
another.'" Commonwealth v. Earle, 458 Mass. 341, 347 (2010),
quoting Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).
"The standard of wanton or reckless conduct is at once
subjective and objective . . . ." Welansky, supra at 398.
"Whether conduct is wanton or reckless is 'determined based
either on the defendant's specific knowledge or on what a
3
reasonable person should have known in the circumstances.'"1
Commonwealth v. Carter, 474 Mass. 624, 631 (2016), S.C., 481
Mass. 352 (2019), cert. denied, 140 S. Ct. 910 (2020), quoting
Commonwealth v. Pugh, 462 Mass. 482, 496 (2012). "Proof of
[wanton or reckless conduct] requires 'more than a mistake of
judgment or even gross negligence.'" Commonwealth v. Dragotta,
476 Mass. 680, 686 (2017), quoting Commonwealth v. Michaud, 389
Mass. 491, 499 (1983). "[I]n all cases, not just those in which
there is a horrific tragedy as there is here, we must look at
the conduct that caused the result to determine whether it was
wanton or reckless, not the resultant harm." Commonwealth v.
Hardy, 482 Mass. 416, 424 (2019).
The court erroneously concludes that the defendants had
safer options available to them other than consolidation and
that the failure to pursue these options supported a finding of
probable cause that the defendants' actions were wanton or
reckless. Ante at . This conclusion is not supported by the
1 "If based on the objective measure of recklessness, the
defendant's actions constitute wanton or reckless conduct . . .
if an ordinary normal [person] under the same circumstances
would have realized the gravity of the danger." Commonwealth v.
Carter, 474 Mass. 624, 631 (2016), S.C., 481 Mass. 352 (2019),
cert. denied, 140 S. Ct. 910 (2020), quoting Commonwealth v.
Pugh, 462 Mass. 482, 496-497 (2012). "If based on the
subjective measure, i.e., the defendant's own knowledge, grave
danger to others must have been apparent and the defendant must
have chosen to run the risk rather than alter [his or her]
conduct so as to avoid the act or omission which caused the
harm." Carter, supra, quoting Pugh, supra at 497.
4
evidence. "To constitute wanton or reckless conduct, as
distinguished from mere negligence, grave danger to others must
have been apparent, and the defendant must have chosen to run
the risk rather than alter his conduct so as to avoid the act or
omission which caused the harm." Welansky, 316 Mass. at 398.
Our cases demonstrate that "because wanton or reckless conduct
requires a consideration of the likelihood of a result
occurring, the inquiry is by its nature entirely fact-specific."
Carter, 474 Mass. at 634. It is "[t]he circumstances of the
situation [that] dictate whether the conduct is or is not wanton
or reckless." Id.Because our inquiry is fact specific, the world as we knew
it in March 2020 is an essential consideration in this case. We
have previously recognized the unknowns and absolute chaos
created by the pandemic in the opinions that we issued in real
time during what can only be described as a period of turmoil.
See, e.g., Foster v. Commissioner of Correction (No. 1), 484
Mass. 698, 702 (2020), S.C., 484 Mass. 1059 (2020) and 488 Mass.
643 (2021) ("Despite a massive, concerted global containment
effort, COVID-19 has continued to spread, both around the world
and in Massachusetts. Few inhabited places worldwide have been
spared . . ." [footnote omitted]); Goldstein v. Secretary of the
Commonwealth, 484 Mass. 516, 525-526 (2020) ("We need not dwell
long on how dramatically conditions have changed in
5
Massachusetts since the Governor first announced a state of
emergency arising from the COVID-19 pandemic on March 10. All
who presently live in the Commonwealth have seen it [and lived
it] . . ."); Committee for Pub. Counsel Servs. v. Chief Justice
of the Trial Court (No. 1), 484 Mass. 431, 433, S.C., 484 Mass.
1029 (2020) ("The 2020 COVID-19 pandemic has created enormous
challenges for every aspect of our communities. . . . Health
care workers on the frontlines of the epidemic are coming down
with the virus in much higher percentages than others, while
surgical masks and other basic protective equipment are in short
supply, and hospitals with already close-to-capacity intensive
care unit beds confront the possibility of inadequate resources
to care for critically ill patients . . . . Everyday life is
heavily disrupted . . ."). A finding of probable cause in this
case ignores the "practical considerations of everyday life"
(citation omitted), Arias, 481 Mass. at 617, at an unprecedented
time when in many ways life as we know it was falling apart.
The grand jury minutes reviewed as a whole, in the context of
the world as we knew it in March 2020, rather than with our
current understanding of COVID-19, show that the Commonwealth
has failed to demonstrate that the defendants acted with an
"indifference to or disregard of [the] probable consequences,"
Welansky, 316 Mass. at 399, when responding to the outbreak
6
during the earliest stages of what we now know to be an
unprecedented global pandemic.
The court relies on the testimonies of Drs. Ronald Rosen
and Asif Merchant and an epidemiologist with the bureau of
infectious disease at the Department of Public Health (DPH) to
support a finding of probable cause that the consolidation was
wanton or reckless. Ante at . Dr. Rosen testified that, in
his opinion, when planning for an outbreak, such as the one that
occurred at the Soldiers' Home, health care professionals go out
into the community and "contact all your other local nursing
homes" and "ask how they can help." Dr. Merchant testified that
separating symptomatic and asymptomatic patients constituted
"basic infection control guidelines for many diseases." And the
epidemiologist testified that, from the beginning of the
pandemic, the consistent guidance was that there should be
"physical separation between positive patients and asymptomatic
patients." While all of this testimony is relevant, its
application here, even in the light most favorable to the
Commonwealth, is through the perfect lens of hindsight.
At bottom, a finding of probable cause, based in large part
on this testimony, disregards the specific "circumstances of the
situation" at the Soldiers' Home, and it is those specific
circumstances that ultimately dictate whether the consolidation
was or was not wanton or reckless. See Carter, 474 Mass. at
7
634. For one, reliance on this evidence fails to recognize that
an extraordinary number of staff members were sick or just
refusing to work and that attempts to find more staff were made
to no avail. This testimony also discounts the real
administrative obstacles to moving veterans to another facility.
It further fails to take into account that the defendant David
Clinton indicated that the Soldiers' Home was working to obtain
additional personal protective equipment (PPE) prior to the
consolidation and that the first request for assistance from the
National Guard, which was made before the consolidation, was
denied.
Perhaps most concerning, this testimony overlooks the
practical, ethical, and legal difficulties of treating the
facility's dementia patients. Many of the veterans at the
Soldiers' Home were dementia patients, and it was common for
these patients to wander throughout their respective unit and in
and out of other veterans' rooms. And according to the
testimony before the grand jury, as a matter of medical ethics,
these patients could not be "physically or chemically
restrain[ed]." As late as March 26, 2020, DPH confirmed to the
Soldiers' Home that it was "not appropriate" to confine veterans
with dementia to their rooms, even as an infection control
measure. All of these factors are critical to determining
whether there was probable cause that under these particular
8
circumstances the consolidation was wanton or reckless.2 See
Commonwealth v. Carrillo, 483 Mass. 269, 270 (2019) ("The
Commonwealth must introduce evidence showing that, considering
the totality of the particular circumstances, the defendant knew
or should have known that his or her conduct created a high
degree of likelihood of substantial harm . . ." [emphasis
added]).
The court also predicates its conclusion on the offer of
help from Holyoke Medical Center (HMC), contending that as a
result the defendants knew that they had safer options
available. Ante at . Review of the grand jury minutes
reveals only scant evidence about the content of calls where
help was purportedly offered to the Soldiers' Home. The minimal
evidence was presented through an investigator who was not a
party to these calls, but nonetheless characterized the calls
and pontificated about what would have happened if hypothetical
questions had been asked on these calls.
2 Moreover, specifically as to the defendant Bennett Walsh,
reliance on this testimony to support a finding of probable
cause that he was wanton or reckless ignores the fact that the
function of his role was primarily that of an administrator. He
had no medical background or training, and ultimately the
decision to consolidate patients was made during a discussion
with medical professionals who worked at the Soldiers' Home. In
light of his nonmedical background and reliance on the medical
professionals in the building, it is unlikely that Walsh or a
reasonable person in his position would know that a high degree
of likelihood of substantial harm would result from the merger.
9
According to the testifying investigator, she spoke to
Spiros Hatiras, the chief executive officer of HMC, and Carl
Cameron, the chief operating officer at HMC. The investigator
testified that Hatiras told her that in the days leading up to
the consolidation, Hatiras asked Cameron to reach out to the
Soldiers' Home to "prepare [HMC] for potential admissions from
the Soldiers' Home." The investigator said Hatiras told her
that "he believed [Cameron] eventually did talk to [Clinton]" on
"March 24th or March 25th, and the second time on March 26th."
According to the investigator's testimony, "Hatiras'[s]
understanding [was] that [Cameron] did not learn anything of
significance other than that the Soldiers' Home had sick
patients." During her grand jury testimony, the investigator
was also asked a number of hypothetical questions. One question
was whether "[it was] fair to say that" had Hatiras been asked
to help accommodate residents before the consolidation, he
"would have said, yes, and essentially would have reached out to
[the proper authorities needed] to kind of coordinate the whole
thing." The investigator responded, "That's correct."
The investigator also testified about her interview with
Cameron. She testified that Cameron told her that "he had
contact with the Soldiers' Home between . . . March 23rd . . .
and March 25th." She stated that Cameron told her his initial
telephone calls to both Bennett and Clinton were not immediately
10
returned, but Cameron said he ultimately spoke to Clinton twice.
The investigator testified that Cameron said the first call
between him and Clinton occurred around March 25. The
investigator –- who, again, was not on the call -- did not
testify as to what anybody on the call told her was said.
Rather, she characterized the first call as mainly about the
Soldiers' Home employees who were becoming sick "as well as any
PPE issues."
The investigator then said that "Clinton then reached out
to . . . Cameron [a second time] likely on March 26th." The
investigator, who was also not a party to this second call,
testified that during this second call "Clinton told [Cameron]
that the Soldiers' Home [was] having a tough time dealing with
staff that was getting sick" and "that the Soldiers' Home was
okay and that they were in the process of trying to secure
additional PPE." According to the investigator, who I emphasize
again was not on the call,3 Cameron offered to help the Soldiers'
Home. However, to the extent that there was an offer for help,
3 The court points out, in regard to the hearsay testimony
concerning the telephone calls, that hearsay is admissible in
grand jury proceedings. I agree. I point out that the grand
jury witness was not on the telephone calls the witness
describes, and that this witness pontificates on what the likely
content to a hypothetical discussion would have been, as it
relates to the weight of the evidence presented.
11
it was vague and not significantly elaborated upon before the
grand jury.
The only information the investigator gave about this offer
was that, according to the investigator, Cameron told 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 Emergency Room" (emphasis added).
In response to a question about how Clinton responded to this
undefined offer of help, the investigator did not provide a
direct answer. Rather, she testified repeatedly about what
Clinton did not say and questions he did not ask. And although
she was not a party to the call, the investigator testified that
Cameron did not "sense any panic in [Clinton's] voice."
Importantly, the investigator never elucidated whether there was
a discussion between Cameron and Clinton regarding the actual
extent of the help being offered or the relevant government
agency approvals that would have been required to move veterans
from the Soldiers' Home to HMC.
Ultimately, these calls were, according to the testimony of
the investigator, focused on PPE and preparing the HMC emergency
room for potential admissions, respectively. To the extent that
any help was offered to the Soldiers' Home, it was narrow. The
investigator characterized the call as mainly a request for some
warning so that Cameron could arrange logistics at the hospital
12
in the event that individuals were transferred. Even in the
light most favorable to the Commonwealth, this vague, undefined
offer cannot be viewed as a readily available panacea to all the
problems that the Soldiers' Home faced in the earliest days of
the pandemic and, as such, the calls do not support a finding of
probable cause that the defendants were wanton or reckless. In
the midst of such pandemonium, the action or lack thereof under
these circumstances is a thin reed on which to build a finding
of probable cause that the defendants acted wantonly or
recklessly.
To the extent that the court relies on the relevant agency
approvals to move veterans being granted the "same day" it was
requested and that another nearby hospital had the capacity to
take veterans, in support of its conclusion, such reliance is
misplaced. Ante at . The approvals of which the court
speaks were admittedly granted quickly but only after the
cavalry had already arrived at the Soldiers' Home in response to
the administration's involvement. Nothing in the record
indicates how long it would have taken to cut through the
bureaucracy necessary to obtain such approvals were the National
Guard not already present at the Soldiers' Home. Reliance on
speedy approval at that late stage also gives no credence to the
critical fact that the consolidation only occurred after
"reaching out to staffing agencies . . . [and] recent retirees"
13
to alleviate the staffing shortage had failed and an initial
request for assistance from the National Guard on March 27,
2020, was denied. In other words, it is unconvincing to base a
finding of probable cause on the capacity of another nearby
hospital and the speed with which approvals were granted after
the National Guard arrived especially where the record as a
whole demonstrates that before the consolidation there were
unsuccessful attempts to alleviate the staffing shortage and an
initial request for National Guard assistance was both made and
denied.
I recognize that the burden on the Commonwealth at this
stage is not an onerous one, and there is no denying that the
events that occurred at the Soldiers' Home in March 2020 were a
tragedy. However, because I conclude that there was not
sufficient evidence before the grand jury to support probable
cause that the defendants acted wantonly or recklessly, the
indictments lacked probable cause and were therefore properly
dismissed. See, e.g., Commonwealth v. Stirlacci, 483 Mass. 775,
780 (2020). This conclusion is evident when we properly
consider the totality of the circumstances within the Soldiers'
Home created by the avalanche of personnel who called out sick
or refused to come to work, the practical difficulties created
when dealing with dementia patients, the denial of an initial
request for National Guard assistance, and the general
14
circumstances in the Commonwealth during March 2020. See, e.g.,
Goldstein, 484 Mass. at 536 (Kafker, J., concurring) ("The
COVID-19 pandemic has dramatically changed our current reality,
not only in the Commonwealth, but across the globe, and not
simply for a month or two").
We owe our best to our soldiers who, now in old age and
frail health, face the twilight of their journey. Their service
to our nation and the cause of liberty has passed. Their
service, however, entitles them to the opportunity to live out
their days in comfort and safety. There can be no doubt that
what occurred at the Soldiers' Home in March 2020 was a tragedy.
And in the face of such tragedy, perhaps hurling blame and
subjecting the defendants to imprisonment might salve our
conscience. But criminalizing blame will do nothing to prevent
further tragedy or help unravel the complex reasons why the
responses of the Soldiers' Home and so many nursing homes proved
inadequate in the nascent days of the pandemic. Since the
testimony in the grand jury failed to constitute probable cause
to criminalize such blame, I respectfully dissent.