McDermott Atty Faults Vets Home's 'Baffling' Virus Response

By Chris Villani and Brian Dowling
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Law360 (June 24, 2020, 2:06 PM EDT) -- The leadership of the Holyoke Soldiers' Home in Massachusetts made "baffling" decisions as it struggled to respond to a COVID-19 outbreak that killed 76 veterans in the long-term care facility, according to a state-ordered report by McDermott Will & Emery LLP partner Mark W. Pearlstein that was released Wednesday.

The 132-page report criticizes the center's Superintendent Bennett Walsh, who is described as unqualified to lead a long-term care facility. It also takes aim at the Massachusetts Department of Veterans' Services, which left him in charge and did not oversee his work even though the agency knew of Walsh's shortcomings, according to the report.

Several critical decisions, including combining two dementia units into one space after the virus had already broken out, proved fatal, and led one staff member to lament the feeling that she was "walking [the veterans] to their death," the report found.

"Rather than isolating those with the disease from those who were asymptomatic — a basic tenet of infection control — the consolidation of these two units resulted in more than 40 veterans crowded into a space designed to hold 25," the document says.

The report found that "some of the critical decisions made by Mr. Walsh and his leadership team during the final two weeks of March 2020 were utterly baffling from an infection-control perspective, and were inconsistent with the home's mission to treat its veterans with honor and dignity."

Calling the report "nothing short of gut-wrenching," Gov. Charlie Baker said the review documented that "our administration did not do the job we should have done in overseeing Bennett Walsh and the Soldiers' Home."

The governor said his team will implement all the recommendations in the report, and he expects to release legislation on Thursday addressing additional aspects of the Holyoke Soldiers' Home.

"Veterans who deserved the best from state government got exactly the opposite, and there's no excuse or plausible explanation for that," Baker said. "There remains a long road ahead to repair the damage and deep wounds that have been inflicted by this crippling tragedy."

State Attorney General Maura Healey said her office, which is conducting a separate investigation, will review the "systemic failures of oversight by the Baker administration" outlined in the report to determine whether "these missteps and errors warrant legal action."

In addition to at least 76 veterans who died with COVID-19, an additional 84 veterans and more than 80 staff at the facility tested positive. Walsh was placed on administrative leave at the end of March and Baker appointed Pearlstein to investigate on April 1.

Baker said Pearlstein did the report pro bono, with the exception of a $26,000 staffing study.

Pearlstein and his team interviewed 100 people and reviewed more than 17,000 documents. The former federal prosecutor's report includes vivid descriptions from staff of a chaotic response that allegedly cost lives.

"One nurse described the move as 'total pandemonium,'" the report states, referring to the consolidation of the dementia units. "A recreational therapist ... said that she felt like she was 'walking [the veterans] to their death' and that the veterans were 'terrified.' A social worker 'felt it was like moving the concentration camp — we [were] moving these unknowing veterans off to die.'"

The witnesses described dozens of veterans crammed next to one another, including one man eating lunch inches away from another who a nurse said was clearly dying.

The home's leadership shifted quickly from trying to contain the outbreak once it struck the dementia wards to preparing for the deaths of scores of residents, Pearlstein wrote.

"Social workers were assigned to contact family members to discuss end-of-life preferences. On the afternoon of the consolidation, 13 additional body bags were delivered to the 1-North unit," the report says. "A refrigerated truck, intended to supplement the limited capacity of the home's morgue, arrived on Saturday, March 28."

According to the report, Walsh and the rest of the leadership claimed they had no choice but to combine the units due to limited staffing. But Pearlstein said that claim is demonstratively false.

"Within hours of arriving on March 30, 2020, the commonwealth's emergency response team assessed the acuity of the patients and quickly sent many of them to hospitals and other acute-care facilities," the report says. "The same option was available to Mr. Walsh and his team."

Other shortcomings by staff at the Soldiers' Home alleged in the report include failing to promptly isolate patients suspected of having COVID-19, delays in testing additional veterans for the virus when they were showing symptoms, delays in closing common spaces and a failure to stop the rotation of staff among units.

Pearlstein's report also notes that the Massachusetts Department of Public Health considers the Soldiers' Home to be exempt from a state law requiring it to be led by a licensed administrator because it is a state-run facility. Walsh lacked any experience in managing a health care facility and instead had been looking for work as a security consultant, even applying for work at the MGM Casino in Springfield, Massachusetts, the report says.

"He only pivoted his career search to long-term care when a state legislator suggested he apply to run the Soldiers' Home, and assured him that his lack of clinical experience would not be an impediment," the document adds.

As of Tuesday, a total of 7,890 Massachusetts residents had died as a result of COVID-19, according to state health officials. Of those deaths, 4,970, or about 63%, have been reported in long-term care facilities. More than 20% of the state's 107,439 confirmed and probable COVID-19 cases are tied to residents and employees at such facilities.

Francisco Urena, who served as the Massachusetts Secretary of Veterans' Affairs, resigned from his post on Tuesday and named Cheryl Poppe, superintendent at the Chelsea Soldiers Home, as acting secretary. Baker said Wednesday that the state is moving to terminate Walsh from his post.

--Editing by Stephen Berg.

For a reprint of this article, please contact reprints@law360.com.

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