Caretakers of the Elderly: Risk, Neglect and Injury

Peter Martin, Esq.

Does placing a vulnerable elder at higher risk of illness constitute an injury to that person, leading to criminal liability? Are administrators of long-term care facilities criminally liable if they make policy decisions that increase risks to residents of such facilities? Last year, a trial court decision regarding the Soldiers’ Home in Holyoke answered both questions in the negative. The decision, reached in the context of the Covid-19 pandemic, should reassure elder care providers and facilities that their efforts to render adequate patient care will not be considered criminally blameworthy, particularly when implementing infection control measures.

The matter arose during the early weeks of the Covid-19 pandemic, when two administrators at the Soldiers’ Home decided in the face of staff shortages to merge two dementia housing units. The Commonwealth indicted the administrators on five counts of elder neglect and permitting serious bodily injury to an elder, in violation of Massachusetts General Laws chapter 265, sections 13K(d1/2) and (e). The administrators filed motions to dismiss the indictments. The Hampden County Superior Court heard the matter in November of 2021 and dismissed both indictments in their entirety.

The defendants were the superintendent and the medical director of the Home, neither of whom directly provided medical care to the Home’s residents. As the pandemic developed in March of 2020, they adopted infection control measures to reduce residents’ risk of contracting Covid-19. A particularly difficult population was dementia care residents, who could not effectively comply with handwashing, social distancing, and masking requirements. These residents, including the five residents allegedly harmed by the two administrators’ decision to merge the dementia units, would commonly wander through the common areas of their unit, and go into other residents’ rooms. The Massachusetts Department of Public Health told staff at the Home that it was not appropriate to confine these residents with dementia to their rooms even as an infection control measure. Prior to the merger of the dementia units, all five of the dementia residents had already been exposed to one or more other resident who had tested positive for Covid-19.

When nurses began to not show up for work due to fear of infection, and a request for National Guard staffing assistance was unsuccessful, the administrators ordered the merger of two units, with residents who had asymptomatic Covid-19 segregated into a dining room outfitted with beds. The five dementia residents were moved into this dining room, as they had already been exposed to Covid-19. Grand jury testimony did not establish that any of the five suffered from malnourishment or dehydration while in the merged unit.

Grand juries must find probable cause that the defendants committed the applicable offense. This probable cause standard is less than that required to secure a conviction but is more than “mere suspicion.” The statutes in this matter made it unlawful for a “caretaker of an elder” to “wantonly or recklessly” permit serious bodily injury to an elder, or to wantonly or recklessly commit or permit another to commit abuse, neglect or mistreatment of an elder. The “serious bodily injury” alleged here were first, an increased risk of contracting Covid-19 and second, dehydration and malnutrition.

The court quickly dismissed the notion that increased risk of contracting Covid-19 was a serious bodily injury: “there must be a discernible ‘bodily injury’ in the first instance.” Under standard canons of statutory interpretation, the Commonwealth’s position here would fail to give meaning to each word in the legislation and would render the “bodily injury” language superfluous. As to the alleged dehydration and malnutrition, the evidence presented to the grand jury did not create more than a mere suspicion that the five residents suffered from these conditions.

The court found the neglect argument “less weak” because the statutory language provides that a substantial likelihood of harm created by a caretaker of the elderly by itself may constitute neglect. However, because prior to the merger of the units, the five residents had wandered throughout all of the units, they had already been exposed to Covid-19 positive residents, increasing the likelihood of harm to them. Therefore, the unit merger itself could not have created the substantial likelihood of harm.

The court went on to rule that neither the superintendent nor the medical director were “caretakers” of an elder, as required by the statutes. Evidence presented to the grand jury did not establish that either individual rendered direct or substantial care to any of the five residents. The statute defining the Home’s superintendent and medical director states that the former is to be the administrative head of the Home with authority to appoint a medical director, who in turn has responsibility over the Home’s medical, surgical and outpatient facilities and makes recommendations to the superintendent regarding physician, nurse, and medical staff appointments at the Home. The court declined to adopt the Commonwealth’s argument that facility administrators rather than actual care providers could be held criminally liable under either statute cited in this case.

This matter arose in the specific context of the Covid-19 pandemic and under specific state statutes, but it holds more general lessons for those providing elder care services. First, the decision reiterates the commonsense notion that administrative personnel are not direct care givers. Second, the decision provides yet another example of how causation in a complex medical institution can be difficult to prove. Third, it articulates the idea that increased risk is not itself bodily injury. All three notions support a realistic level of liability for those running health care facilities for the elderly.

Peter Martin, Esq. is a partner at Bowditch and Dewey.