By Y. Peter Kang

Law360 (October 2, 2020, 8:53 PM EDT ) The recent filing of criminal charges against two top administrators at a Massachusetts veterans' nursing home over a COVID-19 outbreak that killed 76 residents came as a surprise to health care attorneys, who mulled whether such charges could be politically motivated.

Touted by Massachusetts Attorney General Maura Healey as the first criminal case in the country against nursing home operators related to the pandemic, she said the nursing home administrators contributed to the deaths of dozens of World War II and Vietnam War veterans. Bennett Walsh, 50, the superintendent of the Soldiers' Home in Holyoke, and Dr. David Clinton, 71, the facility's former medical director, were each charged with wantonly or recklessly permitting bodily injury or abuse to the residents.

Healey's investigation, launched in April, found that staffing shortages led to a "tragic and deadly" decision to consolidate two dementia units, resulting in symptomatic and confirmed COVID-19-positive residents being placed within feet of asymptomatic veterans at the facility. The charges place the responsibility for that decision with Walsh and Clinton.

"To know that they died under the most horrific circumstance is truly shocking," Healey said at a press conference announcing the charges.

Attorneys surveyed by Law360 expressed surprise at the criminal charges, saying such charges against nursing home administrators are extremely uncommon.

"In Massachusetts, criminal charges are highly unusual, particularly against an individual for patient or resident care," said Ruselle W. Robinson, a Boston-based health care regulatory attorney with Arent Fox LLP.

Most nursing home patient care issues are resolved through civil litigation, Robinson said. He noted that sometimes state health regulators will step in to address quality of care issues, but they will usually issue fines or take licensing actions as opposed to pursuing criminal charges.

"It's very, very unusual for the attorney general to be involved," he said.

Healey's announcement of the charges came four days after a state court judge's Sept. 21 decision to invalidate Republican Gov. Charlie Baker's firing of Walsh. Superior Court Judge John Ferrara said the termination was improper because the law gives the facility's board of trustees — not the governor — responsibility for appointing and terminating its superintendent. The home's board of trustees is currently reviewing Walsh's employment status.

Walsh was fired in June following the release of a scathing independent report on the outbreak by McDermott Will & Emery LLP partner Mark Pearlstein, who highlighted "utterly baffling" decisions made by the home's leadership that caused a "catastrophe."

Healey said her office is pursuing investigations at multiple other homes across the state.

While Robinson said he would not speculate as to whether the pursuit of criminal charges brought by Healey, a Democrat, is in any way politically motivated, one health care defense attorney said he is concerned about whether attorneys general in other states may be motivated by Healey's actions.

"There are concerns of political pressure influencing decisions, especially in today's polarized environment and the unfortunate finger-pointing that has become a part of that environment," William J. Mundy of Burns White LLC in Pennsylvania said. 

Having said that, Mundy believes the Massachusetts case to be an outlier for coronavirus-related nursing home negligence cases.

"I just don't see a wave of criminal charges based on COVID," he said. "I think it would be terrible for the country, the industry and the providers."

But Steve Watrel, a Jacksonville, Florida-based attorney with Coker Law who specializes in nursing home negligence, said criminal charges against nursing homes could be feasible in states like New York and New Jersey, which saw numerous outbreaks early on in the pandemic.

"In New Jersey you had dozens of people dying of COVID, and the nursing home was not reporting to anyone, not taking actions and hiding bodies, that's criminal activity in my book," he said, referring to Andover Subacute Rehabilitation Center II, where nearly 100 residents died of the virus and 17 bodies were allegedly piled in a small storage room. "It's very egregious and shows a conscious indifference to the residents. That's when cases should be criminally brought."

However, Watrel said state attorneys general often don't have the resources to go after nursing home negligence cases and essentially leave it up to plaintiffs attorneys to seek justice for families. He said he doesn't expect Florida Attorney General Ashley Moody, a Republican, to pursue criminal charges against the state's nursing homes.

"Lets face it, in Republican states you're going to find less action in that regard for these types of cases," he said. "In blue states there is probably more of a motivation to do it. But at the end of the day, because these are elderly folks, there is this general mindset that they are older and are going to die anyway."

Despite ongoing questions regarding any political motivations, Arent Fox's Robinson nonetheless said Massachusetts nursing homes have been put on notice by the charges.

"While this is a highly unusual circumstance, it is a warning to all operators in the state that the AG is watching and you have to pay attention to the guidelines and keep abreast of developments with COVID-19 and act accordingly to protect your residents," he said.

--Editing by Breda Lund and Emily Kokoll.

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