-: SJC-13335.
Commonwealth and David Clinton and another.
-: Terry Lenoski.
-: May it please the court,
Anna Lenoski for the Commonwealth.
The Superior Court's dismissal of the indictments
for elder neglect in this case,
was contrary to the plain meaning of the statute
and the intent of the legislature.
The decisions improperly cramped interpretation
of the term caretaker,
would immunize supervisors whose decisions affect
the health of the elderly and the disabled,
while employees who carry out those decisions,
remain subject to punishment under the statute.
Moreover, the lower courts evaluation of the evidence
is not consistent with the applicable
evidentiary standard at this stage,
which is probable cause, not a reasonable doubt.
In evaluating the dismissal of the indictments,
this court considers the evidence
in the light most favorable to the Commonwealth,
and determines whether there are sufficient facts
to warrant a person of reasonable caution,
in believing that an offense has been committed.
That standard was satisfied here.
The Commonwealth established probable cause
that the appellees were caretakers,
within the meaning of the statute.
The appellees argue that-
Justice Cipher: Okay, excuse me.
May I interrupt?
Can you hear me okay?
-: Yes.
Justice Cipher: This is Justice Cipher.
I would like to just clarify one thing
before you go further.
You have dropped.
You're not arguing anymore about subsection E,
is that correct?
-: That's correct, your Honor.
Justice Cipher: Okay, so that appeal is not...
We've no appeals from that.
Okay, thank you.
Go ahead.
-: Yes, that's correct.
-: Could you start actually with the substantive crime,
and whether or not wanton or reckless is satisfied
in the context of the early days of a pandemic,
significant staff shortages,
and the issue of,
"What do we do to try and separate
people who do have COVID and who don't have COVID?"
And I recognize, as you said.
I recognize that we're dealing with probable cause.
But even based on probable cause in these,
the advent of the pandemic,
how is this wanton or reckless?
-: Yes, your Honor.
So first, at this stage,
the Commonwealth does not need to distinguish
between negligence and wanton, reckless conduct.
This court said that in the Leveck case.
So that's an important background point.
But regardless,
the Commonwealth did show wanton and reckless conduct here.
One thing that is important to note,
is that the record is full of evidence
of witnesses at the time,
recognizing how reckless this conduct was,
how bad...
How poor a decision and how dangerous a decision this was.
There was...
And those were witnesses both who had medical background
and who didn't have medical background.
There was, for example,
a social worker who testified without medical background.
Who testified that when she heard about the idea
of consolidating these two units,
that she realized that that was a terrible idea,
and that she was concerned about the asymptomatic veterans.
And that when she raised it, she was told it didn't matter,
because they'd all been exposed anyway,
which is, of course, not a rationale
that's at all concerned about resident veterans
who were exposed, but who were asymptomatic.
Both appellees here, Mr. Walsh and Dr. Clinton,
knew that there were asymptomatic veterans,
veterans who were presumably negative within this group.
And the response was,
"Well, it doesn't matter because they've been exposed."
So further exposure is not an issue.
There was also a nurse's aid,
who testified that she was shocked.
-: Can I ask you?
What did you put forth to say that at that time,
further exposure really sort of met
even the negligence standard?
-: The expert testimony was very strong on that point, that-
-: What specifically?
-: So one of the experts testified that,
this type of situation was basically an incubator for COVID.
That even though you have...
Even though they had previously been exposed,
further exposure increased the danger,
because you've doubled the density of the space.
And so, the chance that a particular asymptomatic veteran
will encounter a person with COVID, has essentially doubled,
because it's an incredibly cramped space,
which wasn't the case before.
There was-
-: Do you have to show causation?
-: Well, so what the Commonwealth has to show,
is probable cause of a substantial likelihood of harm.
So we don't have to show that any of these veterans
contracted COVID as a result of being in this space.
What we have to show is that they were...
That there was a substantial likelihood of harm.
And here, if you look at these five veterans,
the named veterans here,
all five of them were asymptomatic or primarily asymptomatic
at the time of the consolidation.
Two of them were tested negative
at the end of the consolidation.
And what that shows,
is that they were negative at the beginning.
So you had at least possibly five,
but at least two of these veterans,
did not have COVID at the time when they entered this space.
So the prior exposure here is essentially irrelevant,
because at the time when they entered this space,
they did not have COVID,
and they were placed in an incredibly cramped situation.
And cramp, it doesn't really give justice to what this was.
If you look at the testimony of the witnesses,
they describe bodies on top of bodies.
They describe a war zone situation.
They say that one of the...
One of the family members said,
she felt like they were being treated
like a barn full of animals.
That it was a death trap,
that it was mayhem, disarray, confusion.
That the number of beds didn't match the number of outlets,
so they couldn't plug in the beds.
A nurse said that there was an image
that she would never forget.
And so-
-: Let's go back to exactly what you have to show,
which was what Justice Gaziano was asking about.
So there's a lot of testimony about increased risk,
and what you need to show, tell me if I have this wrong,
is that all this is creating an increased risk
of a substantial likelihood of harm.
-: Well, you have to show a substantial likelihood of harm,
which I think is a risk.
I think a likelihood is a risk.
I think that those are essentially the same thing.
So you have to show, yes, an increased risk of harm.
I think that's an accurate way to describe the burden here.
And when you have-
-: Don't you have to start with the wanton and reckless?
I mean, it's a difficult statute read.
It says, "A person may be found to be guilty
only if a reasonable person would believe that
such person is fair to fulfill such."
I'm trying to find the beginning of it,
which talks about...
Sorry, and I apologize, but, yes.
So whoever being a caretaker
wantonly or recklessly commits or permits another
to commit abuse, neglect, or mistreatment.
So we gotta start with the wanton,
or recklessly permits neglect, right?
Essentially, is that what we're dealing with here?
-: Right.
And neglect is separately defined
as the failure to provide treatment or services
necessary to maintain health and safety, which either harms
or creates a substantial likelihood of harm.
So that's the language that the-
-: But we need at least, reckless, right?
-: That's correct.
As I mentioned at this stage, however, negligence is enough.
Or at least...
And that's not accurate.
-: But you keep saying that.
-: Lemme say that-
-: I just wanna make sure I understand that,
'cause you recklessly permit neglect.
That's a weird statute, right?
That's a hard concept to get your arms around.
-: Well, so recklessness requires knowledge of the conduct,
not necessarily of the result.
And if a reasonable person would realize that
the situation would cause harm, then that is sufficient.
-: Now you've got me confused there.
Wanton and reckless is the men's right, correct?
-: Yes.
-: And wanton and reckless, as we know from our case law,
is different in kind than negligence.
-: Correct.
Certainly, correct.
-: So maybe you misspoken.
I think you were about to correct yourself.
-: Exactly.
I apologize.
What I meant was that, at this stage,
if the Commonwealth has put forward sufficient evidence
that is raised to the level of negligence,
it is at the trial stage,
that the fact finder would distinguish between,
exactly between negligence and recklessness.
-: At this stage, the task of the Commonwealth
is just to produce probable cause to believe
that these things happened, correct?
-: Yes, yes.
And certainly, there's no question
that the Commonwealth has reached that standard.
And as I mentioned,
the expert testimony here is extremely strong.
-: So what is a probable cause to believe that the...
Either the defendant acted wantongly
or recklessly in their actions?
-: The evidence is that,
there's testimony from multiple experts,
as well as other witnesses,
that a reasonable person should have understood
how dangerous the situation was.
And there's also evidence that Dr. Clinton-
-: Is the reasonable person a negligent standard, though?
-: Under recklessness, if the person...
If a reasonable person would realize the situation,
then that is adequate, under recklessness.
-: Can I hold a couple of more facts?
And I don't mean (indistinct)
Again, we're dealing with a crisis.
The nurses don't wanna show up, the doctors don't...
Everyone's frightened of COVID.
The two leaders of the organization,
at least, one of them requests help from the National Guard.
The National Guard turns and doesn't do anything.
The thing that bothers me is that,
there's some offer from this...
Is it the Holyoke Medical Center?
But if there wasn't that offer there,
what could they do?
'Cause they had no staffing.
They have no staffing, they have to...
They have to do something.
But to me, the critical fact is this,
there is some availability
at the Holyoke Medical Center, right?
-: Yeah.
-: Without that, though,
they're doing the best they can, right?
-: Two points, your Honor.
Well, really three.
First of all, the record is not consistent
with them doing the best they can.
And I think the Holyoke Medical Center is critical-
-: Well, the best they can in terms of,
they've got two units,
they don't have enough doctors or nurses.
I get it.
If the Holyoke Medical Center is available,
this becomes more complicated.
But without that, it's hard to say that they're reckless
when they don't have enough people, right?
-: So with respect to the Holyoke Medical Center,
the evidence is very strong that multiple different people
suggested to the appellees to contact them,
or the offer was provided and they didn't take it up.
So for example, the COO...
Both the COO and the CEO of the Holyoke Medical Center,
provided statements.
The COO contacted Dr. Clinton,
spoke with him, offered assistance.
Dr. Clinton didn't suggest that there was any issue,
that there was any significant problem,
that there was any kind of dire need.
Also, the Baystate Medical Center,
there was testimony that they also had space available,
were never contacted.
Holyoke Medical Center is a mile away.
The Baystate is about eight miles away.
Chief of staff to the Holyoke Mayor,
testified that he spoke to Dr. Walsh on March 29th.
-: So that's what's reckless, that they turned down the...
Even though they're going to the National Guard,
which is another federal...
That's what's reckless, is that they turned down...
'Cause I don't find what they did reckless,
if they don't have any other choices.
But it's reckless in your view,
or at least there's probable cause to believe it's reckless,
because they have the choice of the Holyoke Medical Center.
Is that...
-: The staffing issue that was created,
was the result of their own conduct
and their own repeated ignoring of offers for help
from the Holyoke Medical Center,
and suggestions by others to contact them.
And as I mentioned, there were other...
Baystate was also available.
So if they had moved certain veterans out of the facility,
they would've had more space and a better staffing ratio.
And another point that's important here is,
on March 30th, when Belinda Liptak replaced Mr. Walsh,
she did took a number of steps that he could have...
That Mr. Walsh and Dr. Clinton could have taken as well.
She immediately consulted
with a number of infection control experts.
-: Again, no calls returned.
I mean, there's a change, and all of a sudden,
the National Guard and everyone's being responsive,
sort of like a sea change.
What wasn't there?
-: That's not accurate, your Honor.
The record is that there were multiple calls happening
between these appellees, for example, and-
-: Were calls getting returned from the secretary...
From the Secretary of Veterans Affairs before the change?
-: Yes, yes.
Mr. Walsh was having daily calls.
-: I understand that.
-: With the secretary.
-: I understand that, but I mean, with results.
Let me go back to something that you've said
a number of times accurately,
from Commonwealth versus Leveck,
which as you know, is a 2002 case.
Quite a while ago.
Where there's the discussion about
wanton, or recklessness, or negligence,
really being a jury issue as opposed to a McCarthy issue.
Isn't there an assumption in Leveck, though,
that in the light most favorable to the Commonwealth
from the four corners of the grand jury minutes,
that recklessness could be satisfied?
-: Yes.
-: And that goes to my question.
So, I think that answer is correct.
It has to be yes.
So if recklessness is not satisfied
within the four corners of the grand jury minutes,
then the matter should be dismissed
and the superior court judgment should be affirmed, right?
-: If you had a situation where it was impossible
on the record to satisfy recklessness, I think that's right.
But that's not even close to the situation we have here.
And I do wanna emphasize that, that Mr. Walsh was speaking
to the Department of Veteran Services secretary daily,
and the secretary said that he had no sense,
that there was any problem.
That up until March 27th,
the day that Mr. Walsh asked for National Guard support,
he thought everything was fine.
The impression that he was getting was that,
there was no problem, there was no staffing issue.
And Dr. Clinton as well,
when he spoke to the COO of the Holyoke Medical Center,
the impression that the COO got,
was that there was no problem, that there was no...
There may have been some staffing issues,
but nothing that was dire.
And the chief of staff of the Department of Services,
spoke to Mr. Walsh on March 27th or shortly before that,
suggested that he reached out to the Holyoke Medical Center.
He didn't do that.
There were repeated suggestions,
there were repeated discussions.
There were discussions with epidemiologists,
and there was no sense from either of these appellees,
that there was any problem,
until the consolidation occurred.
And just the last point about Belinda Liptak.
As soon as she came into the building,
she consulted experts, she assessed,
figured out where every veteran was,
she immediately contacted all the local hospitals,
she moved veterans outside of the facility.
All of that could have been done by these appellees,
and was not done.
-: Anybody else, sir?
Okay, thank you very much.
-: Thank you.
-: Attorney Pile.
-: May it please the court,
Jeffrey Pile for Dr. David Clinton.
There were a number of problems with these indictments.
Two of them I'd like to focus on with my preliminary remarks
subject to the court's questions.
One is that there was absolutely no evidence,
that Dr. Clinton met the narrow statutory definition
of caretaker set forth in this statute.
And the second was, there was no evidence
that the authorization of the merger,
which is the only thing
that these defendants have been indicted for,
created a substantial risk of harm
that wasn't there already.
The statute, of course,
limits the definition of contracted caretakers,
to people whose job was to provide-
-: You don't have a whole lot of time.
I think you should move to the second point.
-: Thank you, your Honor.
As far as the second point of the causation issue.
As the neglect definition is also a narrow definition
in this statute,
the neglect definition requires an act that...
Or an omission that harms or creates
a substantial likelihood of harm.
And the superior court judge was fully correct
in looking at the entirety of the evidence
before the grand jury and saying,
that there's no evidence that things would've been different
if the merger had not occurred.
Each of these five veterans was the roommate
of a person who either was symptomatic,
or had tested positive for COVID before the merger.
Each of these five veterans.
-: That seems odd, though.
Because they've been exposed,
then you can do anything to them?
I mean, just...
Obviously when they're continued exposure,
I mean, I'm not a scientist,
but it seems like it's gotta increase the likely of harm...
Likelihood of harm, right?
I just don't get that argument.
-: Well, if the statute was written to say,
"Any person commits neglect
if they create a substantial likelihood of harm
or increase a likelihood of harm."
-: It says, "Permits."
-: Permits another and neglect-
-: The way you walk us through...
Okay, 'cause when they merge those units
and put all those people together,
they are certainly increasing the likelihood of harm
that those people are going to get COVID, right?
I mean, there's just no way that's not true, right?
Your defense is, they already have it, essentially.
-: Well, your Honor, I would disagree with that,
in the sense that the intent behind this merger,
as all the testimony showed,
was to cohort only asymptomatic people together.
What Dr. Clinton is being indicted for doing,
is authorizing the merger.
And the intent behind that merger was to say,
"All right, let's put all the asymptomatic people
in the dining room."
Dr. Merchant testified that the intent behind that was good,
but the execution of it was flawed,
and there was no evidence that Dr. Clinton was involved
in the execution of that actual merger,
because it (indistinct)
-: I have trouble with that.
When there's the Holyoke Medical Center option,
and maybe a Baystate,
because obviously, if you can take them
and put them somewhere where they're isolated and separate,
they're gonna be less...
There's much less danger of exposure to COVID, right?
-: Well, number one, there was no evidence
that the Holyoke Medical Center was set up
for a long-term care situation, number one.
It's set for dementia patients.
-: Really?
And a probable cause standard.
That's where I have trouble.
Again, it's probable cause and we know it.
We know it is available,
because as soon as the new person comes in,
she takes advantage of it and moves everyone there.
-: Well, at some point,
the National Guard finally gets activated
and the resources that co-defendant, Mr. Walsh asked for,
are finally brought to bear.
But the defendants here have been indicted
solely for the merger decision,
not for the entire course of conduct.
-: But the merger decision has to be looked at
in its total context, right?
Which is, again, if there weren't the Holyoke option,
I don't see how your clients have any other option.
But when there's an offer of assistance from someone else
to take on these people,
isn't that part of the calculus of whether
this is a reckless decision or not?
-: No, your Honor, I think that the question before the court
is whether the decision of the merger
created the substantial risk of harm?
When you're looking at wanton and reckless conduct,
certainly you-
-: You just put a fine point on it.
The decision to merge wasn't made in isolation,
at least, according to the record.
It was made with the backdrop of the Holyoke Medical Center
offering assistance as well.
And your response is, "Well, it wasn't good enough
'cause it's not set up for dementia patients."
But isn't that really where we go
at a probable cause standard?
I mean, that might be your defense.
Kudos to you.
But we're at the probable cause standard.
-: What we have argued in our brief as to Dr. Clinton,
was that there was no evidence,
that given the entirety of the situation before Dr. Clinton,
that the decision to cohort like-patients together
within the facility, which is locked,
was wanton and reckless in the sense that,
it totally contravened medical standards.
There was no information before the grand jury.
-: I mean, again, that might be your defense,
that it wasn't totally in contravention
of medical standards.
But as Justice Kafker was pointing out,
putting people together in an environment
where there is this rather unknown infectious disease,
necessarily increase the risk,
or at least that's what the record
at this probable cause stage is showing us.
-: And increase the risk is not enough,
under the terms of this statute.
-: Even for probable cause?
-: Correct.
-: Why?
-: Because the statute-
-: When your doctors aren't showing up
because they understand
as a reasonable person would understand,
that this has become toxic.
I'm not gonna expose myself.
That's why you have the staffing shortages.
-: Well, we have to look at what the legislature had in mind
when it created this statute.
The legislature had in mind the kind of neglect
that you read about in the legislative history
that we put into our brief,
as well as cases like the crews case.
Somebody is left in a chair for two weeks,
and gets sepsis and dies of it.
That is the kind of neglect the legislature had in mind.
That is why the legislature wrote them.
-: Isn't that similar to bodies upon bodies,
all cramped up in a unit that's supposed to hold,
I don't know, 20 some odd people?
There're 40 some odd people.
People are dehydrated, people are starving.
I mean, I guess, you're really running up an uphill battle,
at least as I see it, at this probable cause stage.
-: As the judge found below,
there was no evidence that any of these-
-: He's not supposed to find anything below.
He's supposed to look at the record and say,
"Is there enough for probable cause?"
-: There has to be some evidence-
-: Yes.
-: Of the thing being suggested.
There was no evidence that any of these five veterans
who are listed in the indictments,
were dehydrated or malnourished at any time.
If anything, the evidence is to the contrary,
their records show that some of them were taking fluids.
Their records say things like, "No issues."
And even under the McCarthy standard,
which, your Honor, I recognize,
is a difficult standard for a defendant at this stage.
There was no evidence of that as to these five veterans.
-: I guess it goes back to what we're talking about,
of increased risk of harm or increased risk-
-: Right.
-: Of a substantial likelihood of harm.
The Commonwealth doesn't have to show
that this merger caused them to have COVID,
or caused the malnutrition.
They have to show that what they did increased the chances,
the risk of reaching a level
of a substantial likelihood of harm.
That's what they have to show
under the definition of neglect.
-: I read the definition of neglect differently, your Honor.
The definition of neglect says,
"It is a failure to provide treatment which either harms."
The Commonwealth has not alleged harm here.
"Or creates a substantial likelihood of harm."
And creates means bring something into being,
that wasn't there before.
It doesn't mean increase.
Create and increase are two different things.
-: Yeah, but if they increase results
in a risk of a substantial likelihood of harm
that didn't exist before
or is at a completely different level
then you have, it seems,
the definition of neglect satisfied.
-: So what the Commonwealth argues is that,
that you could find that
the cohorting brought a moderate risk
and made it a substantial one,
and that satisfies probable cause, right?
That's what they argue.
The trouble was that none of their experts,
and there was no evidence that the risk to these veterans
was moderate or insubstantial, at the time of the cohorting.
They each were a roommate of a person who tested positive.
-: Can I push that a little bit?
And I don't mean to...
Are you okay? -: Yes.
-: So again, 'cause I see your point says,
"Creates a substantial likelihood of harm."
But again, they have negative COVID tests
in a couple of these people,
or all five of them have negative COVID tests
when they go into that unit, right?
-: Some of them were tested maybe close in time
to when they went into that.
-: But again, I'm looking at-
-: But the results came in later.
-: I'm looking at a probable cause standard.
So I have people with a negative COVID test
when they go into that consolidated unit.
Is there probable cause to believe
that consolidating people with a negative COVID test,
creates a substantial likelihood of harm?
That's all they have to show, right?
-: No, because all the experts said
that they were still in the incubation period
from when they were exposed by their roommates,
when they were later tested positive.
And they all said...
None of them said,
"You can draw any causal connection
between the merger and COVID."
All they said was, "It may increase the risk."
But that gets to what the legislature intended.
There are many things in a hospital environment
that may increase a risk of a substantial harm.
Everything from a doctor not washing their hands properly,
to a surgeon not getting enough sleep before an operation.
Those kinds of things can create...
Can increase a risk.
But the legislature had in mind something narrower.
Neglect, that itself creates the risk.
Creates.
And that's the point we wanna make
on this question of neglect,
is that, the judge correctly found,
looking at the whole slew of evidence here,
that that substantial likelihood existed before the merger.
And it would just be speculation or a mere suspicion,
to say that the merger created a substantial risk
when that risk was already present.
Nobody who was around at that time, in March of 2020,
would've thought that people in a nursing home environment
had an unsubstantial risk of catching COVID.
Everybody knew at that time,
that that risk was substantial at that moment,
regardless of how the homes were run.
The question is, did the merger create the risk?
-: Thank you. -: And we say it did not.
-: Very good.
Thank you so much.
Okay, Attorney Bennett.
-: Good morning.
Attorney Bennett, on behalf of Mr. Walsh.
May it please the court.
There was no offer from the Holyoke Medical Center
to take in these persons.
-: Better be careful with that,
'cause you're drawing a fine distinction.
But I wanna make sure we fully understand
that point here because-
-: Yes.
-: Again, I haven't read the whole record yet, but...
-: If I could explain that.
-: Yeah.
Okay, just be very precise when you make that point, okay?
-: There was no discussion at any time
with the Holyoke Medical Center,
where they offered to take in people
from the Holyoke Soldiers' Home,
to take in people who did not need treatment.
That never happened.
There never was that type of discussion.
-: What was said by the person
from the Holyoke Medical Center to your client,
and to your co-defendant's client?
-: Nobody said anything to my client.
But the background is this, your Honor.
-: Well, hold it.
Is that because he didn't return the phone call or...
Again, be precise.
What was said...
Why don't you say factually what was said back and forth,
and then we can make some determination?
-: I believe it was March 24th, note that,
the Holyoke Soldiers' Home had sent two veterans
to the Holyoke Medical Center to be treated for COVID.
They got a call from the Holyoke Medical Center.
Dr. Clinton returned the call that morning,
spoke to the individual from the Holyoke Medical Center.
They wanted more information from the Holyoke Soldiers' Home
when they were sending people up to their emergency room,
so that they would help them
better manage their emergency room.
That was the nature of the discussion.
-: They didn't make any offer to take any people that...
Again, 'cause we're gonna go through the record,
and that's a critical point.
Please know-
-: Please go through the record.
They never made that offer.
-: They never made an offer saying that,
"We have beds available for your people?"
-: Never.
It never happened.
In addition, your Honor, on that day,
of the two veterans that were sent
to the Holyoke Medical Center,
one of them, the family had arranged for that person
to be admitted for treatment to the Holyoke Medical Center.
The other individual had a do not resuscitate,
and the Holyoke Medical Center did not admit him.
They sent him back to the Holyoke Soldiers' Home.
And this individual was in tough shape,
and he died a couple of days later,
and they said it was a DNR and they could not treat him,
they sent him back.
I believe it's 39 of the 42 people
that are in the merged unit, had DNRs.
So the idea that the Holyoke Medical Center was an option,
is not real.
And when the-
-: I'm confused by that.
Because someone has a DNR,
they can't go to the Holyoke Medical Center.
Why is that?
-: Well, it appears most likely,
that the Holyoke Medical Center
did not want them in their emergency rooms.
But they said...
They told-
-: A lot of people have DNRs,
but they go to medical centers for treatment.
I don't get it.
-: That's what the Holyoke Medical Center said, your Honor.
-: The Holyoke Medical Center says-
-: Is not what I said, is what they said.
-: The Holyoke Medical Center says that,
"If someone has a DNR, we're not gonna treat them?"
-: No.
They said, with respect to this one particular veteran
who was sick with COVID,
who had been sent there to be admitted for treatment,
that they declined to admit him because he had a DNR,
and they couldn't treat him.
That's what they told the investigators.
So that's why I bring up the fact,
that you had everybody else in that unit had DNRs,
because that is the way that they were treated
at the Holyoke Medical Center.
-: Explain to me something.
When the new person comes in and she sends all these people
over to the Holyoke Medical Center,
how is that consistent with what you've just...
What you're arguing here?
-: The only reason they were sent, your Honor,
is because the National Guard had come in
and tested all of them.
And so they had testing results,
before they sent any of them to the Holyoke Medical Center.
If they had sent them to the Holyoke Medical Center,
where they had been exposed but not tested,
that would've been creating a risk for everybody else.
-: Why couldn't your clients have tested them
and sent them over?
-: Because that type of testing was not available
before they tested everybody, symptomatic and asymptomatic.
That was not available till the National Guard came in.
My client requested the National Guard to come in,
but the state did not honor his request.
And he requested they come in on Friday,
and they didn't come in until
after the new command team came in.
When they requested the National Guard,
they were there the very next day.
-: Well, we're sort of hearing two different views,
but it's what's in the four corners
of the grand jury minutes.
Because when we were talking about this
with the Commonwealth,
and I suggested that perhaps there was more responsiveness
after there was a change,
the response was no.
I realized that there was communication
with the Secretary of Veterans Affairs beforehand.
But again, with a level of precision,
and this is really important
because there's a staffing shortage,
it's at the beginning of the pandemic,
there's limited resources.
Something needs to be done.
And whether there's another option on the table or not,
is critically important.
-: I would agree with you, your Honor,
but that was not an option.
As a matter of fact, it also needed special approval
from the Executive Office of Health and Human Services,
to transfer anybody.
And they got that.
This was after the National Guard came in,
and you had everybody now with the new command team,
they got that special approval.
That was not on the table on Friday afternoon,
when they were trying to figure out what happened.
It was not a real option.
Not a real option at all.
Your Honor, I see the time,
and if I could just go to a different issue on the...
It came up with respect
to the substantial likelihood of harm
and what that is all about.
The Commonwealth, in its reply brief,
asserted that the decision to consolidate the units
increased a pre-existing risk to such an extent
that it created a substantial likelihood of harm.
So to succeed on this,
the Commonwealth must establish probable cause
that the pre-existing likelihood of harm
was not substantial.
In other words, that the risk had not...
The substantial likelihood of harm
had not only been created.
So with respect to that, your Honor, the record would show,
that, in fact, the risk was quite substantial.
On this very day, seven veterans tested positive,
and those results were made known.
15 other veterans became symptomatic.
Of those 15 veterans who became symptomatic on that day,
three of them died that very day.
The five veterans who are named in the indictments,
were on that day, co-mingled in their bedrooms
with multiple veterans who were already infected.
If no authorization had been given for the merger,
those five veterans would've stayed co-mingled
in their rooms with their already infected roommates.
The reason for...
One of the reasons for the merger,
was to give the staff the opportunity
to try to save those asymptomatic veterans
from additional exposure.
That was part of the-
-: That gets back to what other options
were on the table, though.
It gets back to that.
-: Well, your Honor, the staff felt,
there are no other options.
The chief nursing and all of her nursing staff got together,
they couldn't come up with anything.
If there were other options,
and there certainly may have been,
it was not obvious to them at that time,
trying to figure it out at that time.
The chief nurse in Mr. Walsh-
-: Can I ask you a specifically?
I'm looking at record
transcript three, page 16.
Can you pull that up for me?
This is Mr. Cameron.
Who's Mr. Cameron?
-: Mr. Cameron is the executive officer
at the Holyoke Medical Center.
-: Okay.
So does Mr. Cameron recall Dr. Clinton saying,
"Soldier's home was in trouble regarding their staffing."
On this March 26th?
No, Mr. Cameron doesn't recall.
So on this March 26th call,
which is the day before the calls consolidate,
did Mr. Carl Cameron offer to help soldiers home
on this call?
-: Yes, he did.
-: Mr. Cameron, again, reiterated to Dr. Clinton.
What is this?
Isn't this the...
Is this inaccurate?
Is this not an offer of assistance?
What is this?
-: I don't know what that means by help, in that statement.
-: Read this page and tell me what you're...
'Cause again, this is a critical factor, and I'm just...
Again, I'm reading quickly through a transcript.
I haven't had chance to read all of it.
-: But in our statement of facts, your Honor.
-: I don't care what your statement of fact is.
I wanna know what the record...
This is a grand jury testimony, right?
-: The record would show that
there may have been a general offer,
"If you need anything, let us know."
-: Okay, but that's different
from what you just said 10 minutes ago,
isn't it?
-: No, I don't believe so, your Honor.
There was no offer, no discussion,
about transferring veterans who did not need treatment
to be sent to the Holyoke Medical Center as an option,
so that they could do something with respect
to this emergency that was going on.
There was no such offer,
there was no such discussion like that.
-: Okay, again, I'm reading from this transcript.
Mr. Cameron, again reiterated to Dr. Clinton,
that if the soldier's home needed help,
or they wanted to hospitalize veterans,
Dr. Clinton should reach out to Mr. Cameron,
so that he could help manage the emergency room.
-: That was talking about veterans who were sick
and going to the emergency room.
That's what they were talking about there.
They were not talking about transferring people who were...
Who did not need treatment at the time.
That's what was going on there.
That's why he called in the first place,
they wanted information from the Holyoke Soldiers' Home,
about who you're sending up there,
so they could better prepare their emergency room.
That's what that refers to.