Civil Immunity but Criminal Liability

Criminal Charges

Nursing home corporations sought and received immunity for neglect and abuse during the pandemic. However, criminal charges can be filed. This seems inconsistent.

Last month, Massachusetts Attorney General Maura Healey announced the first COVID-19 criminal charges against nursing home officials. A grand jury indicted former Holyoke Soldiers’ Home Superintendent Bennett Walsh and Medical Director Dr. David Clinton. The charges include causing or permitting serious bodily injury or neglect of an elder.

Maura Healey said in a statement: “We began this investigation on behalf of the families who lost loved ones under tragic circumstances and to honor these men who bravely served our country. We allege that the actions of these defendants during the COVID-19 outbreak at the facility put veterans at higher risk of infection and death and warrant criminal charges.”

Defendants chose to merge two dementia care units commingling COVID-19 positive residents with others who were asymptomatic. Up to six residents were moved into rooms designed for four people. More than 160 residents and staff members got sick.

An independent government report released in June claimed that Walsh was not qualified to operate a long-term care facility. It noted that “substantial errors and failures” led to the deaths. Operators of the Holyoke Soldiers’ Home also were hit with a proposed class-action lawsuit in mid-July, seeking more than $175 million in damages.

The Centers for Medicare & Medicaid Services (CMS) has handed out $15 million in fines related to infection control deficiencies and failure to report COVID-19 data.