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SJC-13335

COMMONWEALTH vs. DAVID CLINTON

(and nine companion cases1).

Hampden. January 4, 2023. - April 27, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, 

& Georges, JJ.

Grand Jury. Practice, Criminal, Grand jury proceedings, 

Indictment. Probable Cause. Evidence, Grand jury 

proceedings. Wanton or Reckless Conduct. Veteran.

Nursing Home. Statute, Construction. Words, "Caretaker," 

"Create a substantial likelihood of harm."

Indictments found and returned in the Superior Court 

Department on September 24, 2020.

Motions to dismiss were heard by Edward J. McDonough, Jr., 

J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Anna E. Lumelsky, Assistant Attorney General (Kevin Lownds, 

Assistant Attorney General, also present) for the Commonwealth.

Jeffrey J. Pyle (John F.X. Lawler & James W. Lawson also 

present) for David Clinton.

1 Four against David Clinton, and five against Bennett 

Walsh.
2

William M. Bennett (Meredith G. Fierro also present) for 

Bennett Walsh.

The following submitted briefs for amici curiae:

Judith M. Flynn for Long Term Care Community Coalition & 

others.

Nina Loewenstein, of New York, & Tatum A. Pritchard for 

Disability Law Center.

Anna Richardson for Veterans Legal Services.

WENDLANDT, J. The grand jury indicted the defendants,

Bennett Walsh and David Clinton, the superintendent and medical 

director of the Soldiers' Home in Holyoke (Soldiers' Home),

respectively, for elder neglect in violation of G. L. c. 265, 

§ 13K (d 1/2) (elder neglect statute), in connection with their

alleged failure to provide treatment or services to the veterans 

there housed. The grand jury heard testimony that, seventeen 

days after the Governor declared a state of emergency in the 

Commonwealth because of the COVID-19 pandemic, these decision

makers directed their staff to consolidate two floors of elderly 

veterans, some of whom had dementia, onto one floor. Forty-two 

disabled veterans, five of whom were named in the indictments

(named veterans), were crowded into a locked space designed to 

house at most twenty-five patients. As one witness told the 

grand jury, there were "bodies on top of bodies." "[T]ightly 

packed together and sick," and "coughing on top of each other,"

the veterans at this State-run facility were left in their 

"johnnies," were placed in beds less than two feet apart, and 

were deprived of adequate hydration and food. The grand jury 
3

heard that some veterans were nonresponsive; others lay 

listless, mouths agape. Those with COVID-19 symptoms

intermingled with those without. Record-keeping was abysmal. 

It was, as one witness told the grand jury, "like a war zone." 

Three days after the decision to consolidate, as many as ten 

veterans had died from COVID-19.

The grand jury also heard that the consolidation ran 

against known infection control protocols. Medical best 

practices at the time recommended isolation of patients who were 

symptomatic from those who were not. Indeed, we were all being 

told in the nascent days of the pandemic to remain at a 

prescribed "social distance" from each other.

And the grand jury were told that this tragedy could have 

been avoided; the defendants were presented with options that 

comported with expert advice and infection control guidelines.

Clinton, who absented himself from the Soldiers' Home for his 

own health, was told by the chief operating officer of a nearby 

hospital that the hospital stood ready, willing, and able to

assist. The grand jury heard that Walsh received calls from the 

same hospital official, but he did not return the calls; and he

had daily telephone calls with the Secretary of the Department 

of Veterans' Services (DVS) to discuss the Soldiers' Home's 

COVID-19 response, yet he hid the mounting staffing crisis and 

emergence of COVID-19 symptoms within the Soldiers' Home from 
4

the secretary. Instead, the defendants chose silently to 

consolidate this vulnerable population together without adequate 

space or sufficient staffing to care for them. Because these 

facts and other information presented to the grand jury 

constituted probable cause to believe that the defendants 

violated the elder neglect statute, the Superior Court judge 

erred in dismissing the indictments.

Of course, sometimes bad things happen for no discernable 

reason, and no one is to blame. At any subsequent trial, 

prosecutors will need to prove their case. We conclude only 

that they will have the opportunity to do so.2

1. Background. We recite the facts presented to the grand 

jury in the light most favorable to the Commonwealth, see 

Commonwealth v. Washington W., 462 Mass. 204, 210 (2012),

reserving some details for subsequent discussion.

a. The Soldiers' Home. At all relevant times, the 

Soldiers' Home was a State-run facility for eligible veterans3 in 

Holyoke, with a long-term care unit and independent living 

2 We acknowledge the amicus briefs submitted by the 

Disability Law Center; the Long Term Care Community Coalition, 

Dignity Alliance Massachusetts, and the Disability Policy 

Consortium; and Veterans Legal Services.

3 To be eligible, veterans must have served 180 days of 

military service; have served ninety days of military service, 

one of which was during wartime; have received a purple heart; 

or have a service-related disability.
5

spaces. The long-term care unit housed veterans needing

assistance with activities of daily life, and provided nursing, 

medication management, and other services.

In March 2020, about 226 veterans lived in the long-term 

care unit, which was divided among five care centers.4 "Care 

Center 1," which was originally split between two floors ("1 

North" and "2 North"), housed patients with memory issues, 

principally dementia, and was locked from the outside.5 In 

March 2020, there were forty to fifty veterans in Care Center 1.

At all relevant times, Walsh was the Soldiers' Home 

superintendent, the "administrative head of the home," a 

position he had held since 2016. G. L. c. 6, § 71, repealed by 

St. 2022, c. 144, § 4. See G. L. c. 115A, § 14, inserted by 

St. 2022, c. 144, § 66.6 As superintendent, he was vested with 

the statutory authority to appoint and remove the medical 

director of the Soldiers' Home. G. L. c. 6, § 71. See G. L. 

c. 115A, § 14 (c). Clinton, who was the medical director, 

"ha[d] responsibility for medical, surgical[,] and outpatient 

4 Soldiers' Home staff were hired for particular care 

centers, for example, Care Center 1, but would at times be asked 

to "float," i.e., work temporarily in other care centers.

5 Veterans in Care Center 1 were typically housed four to a 

room.

6 Effective March 1, 2023, G. L. c. 6, § 71, was repealed 

and replaced by G. L. c. 115A, § 14. Our disposition would be 

the same with respect to the new statutory language.
6

facilities," as well as for "mak[ing] recommendations to the 

superintendent regarding the appointments of all physicians, 

nurses[,] and other medical staff." G. L. c. 6, § 71. See 

G. L. c. 115A, § 14 (c). The DVS, which at the time was an 

agency within the Executive Office of Health and Human Services 

(EOHHS), oversaw the Soldiers' Home. G. L. c. 6A, § 16, as 

amended through St. 2018, c. 154, § 4. See G. L. c. 6A, § 105, 

inserted by St. 2022, c. 144, § 9. In March 2020, the secretary 

of DVS was Francisco Urena.

b. The COVID-19 outbreak. "On March 10, 2020, the 

Governor declared a state of emergency to support the 

Commonwealth's response to the threat of COVID-19." Le Fort 

Enters., Inc. v. Lantern 18, LLC, 491 Mass. 144, 147 (2023), 

quoting Committee for Pub. Counsel Servs. v. Chief Justice of 

the Trial Court (No. 1), 484 Mass. 431, 433, S.C., 484 Mass. 

1029 (2020).

On March 17, the Soldiers' Home tested a veteran, HM, for 

COVID-19 because he was showing respiratory symptoms. HM lived 

on 1 North and had three roommates. He had a tendency to wander

in and out of other people's rooms and the common room. The 

Soldiers' Home chief nursing officer, Vanessa Lauziere, 

suggested to Clinton that HM be isolated pending the results of

the test; Clinton determined not to do so, stating that 

isolating HM was a "moot point" because HM was in Care Center 1,
7

a locked dementia unit that was isolated from the Soldiers' 

Home's other units.

On March 21, HM's COVID-19 test results showed that he was 

positive for COVID-19. Lauziere reported the result to Walsh 

and Clinton. Clinton told Lauziere that HM should be isolated 

and that other symptomatic veterans should be tested. HM's 

roommates were moved from HM's room in 1 North to other rooms. 

Lauziere suggested that HM be moved from 1 North to one of the 

Soldiers' Home's COVID-19 isolation spaces, but Clinton said 

that patients in 1 North had already been exposed and that 

moving a wandering patient out of the locked unit would further 

compromise the facility. Walsh informed the staff of HM's 

positive test, and many staff members became concerned.

In the days that followed, as more veterans showed symptoms 

of COVID-19, staff members absented themselves from work at 

increasing rates because they either had contracted COVID-19 or 

feared they would. Clinton quarantined at home for about a 

week, stating that he had developed respiratory issues on March 

21, that he was in a high-risk population due to his age, and 

that he could work from home. Other doctors also spent less 

time than usual at the Soldiers' Home because Clinton told them 

that they were at high risk due to their age and advised them to 

minimize their time at the facility.
8

Carl Cameron, the chief operating officer of Holyoke 

Medical Center (HMC), which was located about a mile from the 

Soldiers' Home, became concerned following the admission of 

Soldiers' Home patients to the HMC emergency department. During 

the week of March 23, Cameron twice called Walsh to inquire 

whether the Soldiers' Home required assistance in connection 

with its COVID-19 response; Walsh did not return Cameron's 

calls. Cameron also called Clinton directly on Clinton's cell 

phone. During two telephone calls, which likely took place on 

March 25 and March 26, Clinton told Cameron about the Soldiers' 

Home's struggle with staff contracting COVID-19. The grand jury 

heard testimony that Clinton reported to Cameron that the 

Soldiers' Home was "okay" and that they were trying to secure 

additional personal protective equipment (PPE). Clinton did not 

indicate that the Soldiers' Home was in "dire straits" regarding 

staffing, and Cameron did not sense any panic in Clinton's 

voice.

Nevertheless, Cameron "reiterated to . . . Clinton that if 

the Soldiers' Home needed help or they wanted to hospitalize 

veterans, . . . Clinton should reach out to . . . Cameron so 

that he could help manage the [e]mergency [r]oom." However, 

Clinton declined the offer of assistance; importantly, Clinton 

did not inquire whether he could transfer veterans --

symptomatic or asymptomatic -- to the HMC, and he did not ask 
9

for other types of support from HMC, such as nursing staff or 

PPE. Cameron did not hear back from Walsh or Clinton after this 

call.

By March 27, about one day after Cameron volunteered HMC's 

assistance, the staffing shortage at the Soldiers' Home reached

critical levels. On March 27 or one to two days before then, 

the chief of staff of DVS recommended to Walsh that he contact 

HMC for assistance. Walsh did not do so.

At some point in March, Urena had instituted 10 A.M. daily 

telephone calls with Walsh and others to discuss COVID-19-

related issues. Walsh provided updates to Urena, including 

about the preparation of COVID-19 isolation rooms at the 

Soldiers' Home and HM's COVID-19 test. Walsh told Urena that HM 

had been isolated from the other veterans while the test was 

pending, even though HM had not been. At no time before March 

27, and even during a call on the morning of March 27, did Walsh 

disclose to Urena that there was any problem with staffing 

levels at the Soldiers' Home.

After having been absent for about a week, Clinton returned 

to the Soldiers' Home on March 27. That morning, Lauziere 

expressed her alarm about the staffing crisis to EOHHS personnel 

and suggested that the National Guard be brought in to help. 

Walsh made a request for National Guard assistance to EOHHS and 

DVS, which was denied. When Urena heard about the request, he 
10

was "in shock"; Walsh had not mentioned it during their call 

that morning and had not previously reported any staffing 

challenges.

c. The consolidation. On March 27, Walsh, Clinton,

Lauziere, and others met to discuss the staffing crisis. A 

proposal was made to address the staffing shortage issues by 

consolidating the two floors of Care Center 1. Under the plan, 

approximately forty-six veterans would be placed on one 

consolidated floor, 1 North, which was designed to hold twentyfive beds. When Lauziere questioned whether consolidation was a 

viable option, Clinton assured her that it was, reasoning that 

the two floors were self-contained and that everyone housed 

there had already been exposed to COVID-19. Neither Walsh nor 

Clinton raised the possibility of sending veterans to the HMC or 

other nearby health care facilities, or shared that Cameron had 

offered that option. According to Lauziere, she would have 

pursued the option had it been presented to her.

Without knowing about HMC's offer of assistance, Lauziere 

and others commenced execution of the decision to consolidate 

the patients onto one floor. Veterans were grouped loosely by 

COVID-19 status;7 nine veterans (including the named veterans) 

7 According to Lauziere, the veterans were categorized as 

follows: veterans who had not been tested or had not 

experienced any symptoms; veterans who were symptomatic and had 
11

who had been exposed to COVID-19, but had not been tested, and 

who purportedly were asymptomatic8 were packed into the dining 

room. Lauziere, who did not have the requisite authority to 

consolidate the floors without approval from Walsh and Clinton, 

disclosed the detailed plan to Walsh, who declined to evaluate 

it or to review it with Clinton. Walsh knew that there were 

COVID-19 positive veterans on both floors, but he considered the 

detailed execution of the plan a medical decision as to which he 

deferred to Clinton. When a social worker raised concerns about 

the consolidation plan, the social worker was told that all of 

the veterans involved had already been exposed to COVID-19.

According to staff members, the situation on 1 North after 

consolidation was "awful"; there were "bodies on top of bodies"

and "[i]t was just everyone sitting right next to each other, 

just . . . coughing on top of each other," "like a war zone." 

Some veterans were left unclothed, wearing only their hospital 

johnnies. The veterans did not wear PPE or masks. Beds and 

rooms were mislabeled, bearing the wrong veterans' names, and 

there were insufficient outlets to supply power to each of the 

veterans' automatic beds, especially in the dining room, which 

positive COVID-19 test results; symptomatic veterans who had 

pending results; hospice veterans; and veterans nearing death.

8 As discussed infra, the Commonwealth's experts testified 

that some of these veterans were likely symptomatic.
12

had only one outlet. After the consolidation, veterans did not 

receive sufficient medication, food, or fluids.

In terms of infection control, staff testified that there 

was no protection between the rooms with symptomatic or COVID-19

positive veterans and the dining room; the doors were left open. 

Staff were not instructed to isolate symptomatic veterans from 

the asymptomatic veterans in the dining room, or to change PPE 

between the bedrooms and the dining room. Veterans of the 

various rooms, including those who were COVID-19 positive, 

commingled in the day room and shared the four bathrooms on 1 

North. By March 30, eight to ten veterans at the Soldiers' Home 

had died from COVID-19.

d. Arrival of the National Guard. On March 30, because of 

the catastrophic conditions at the Soldiers' Home, EOHHS placed 

Walsh on administrative leave and announced the creation of a 

command center, led by Valenda Liptak, the then chief executive 

officer of Western Massachusetts Hospital in Westfield, who 

assumed Walsh's duties. The National Guard arrived within a 

day.

Upon her arrival at the Soldiers' Home, Liptak toured the 

facility, focusing on 1 North. She walked through the dining 

room and saw "confusion," "mayhem," and "disarray." She saw 

veterans with respiratory issues and veterans who were "actively 

dying." It was not apparent how the veterans had been arranged 
13

from room to room. Some veterans were in beds –- which were 

less than two feet apart from one another –- and some were 

wandering. Most veterans were either wearing johnnies or were 

half-dressed. There were not enough staff members to feed or 

dress the veterans. Two veterans told her they were hungry. 

She also immediately noted the inconsistent use of PPE across 

the staff; some staff members wore masks, gloves, and gowns, 

while others did not.

The incident commander, who had been a nurse for thirtyfive years and toured 1 North with Liptak, described it as an 

image she would "never forget." She had "never seen anything 

like [it]." Veterans were "wall to wall" in the common area. 

Those in the dining room were "tightly packed together and 

sick"; some were nonresponsive, and some lay on their backs with 

their mouths open. Cross-contamination, she observed, was 

everywhere.

The incident commander found no evidence that the veterans 

were being assessed regularly. The records were incomplete and 

disorganized. The Soldiers' Home did not have a total count of 

veterans on 1 North, and the new team did not have accurate 

information about the whereabouts of certain veterans within the 

facility. Clinton told them that he and the other doctors had 

not been going to 1 North because the doctors were considered 
14

"high risk"; instead, nurses were assessing the patients and 

updating the doctors.

Liptak's team's first concern was the immediate need to 

"separate and hydrate" the veterans. They consulted infection

control specialists, who advised Liptak to find a unit for 

COVID-19 negative patients, to shut down open kitchens, to 

encourage more frequent hygiene, and to standardize PPE use. 

Liptak's team tested every veteran for COVID-19 and then began 

to separate them based on their test results. Meanwhile, 180 

National Guard members focused on hydrating and feeding the 

veterans.

On April 3, about forty veterans who tested negative were 

sent to a satellite space at HMC and another twenty were sent to 

the emergency departments at HMC or Baystate Medical Center

(BMC). HMC eventually had three different units dedicated to 

Soldiers' Home patients. One-half of the veterans who were 

transferred eventually died from COVID-19.

According to the chief executive officer of HMC, if Walsh 

or Clinton had indicated that they were experiencing severe 

staffing shortages or an outbreak, HMC would have been able to 

accommodate those veterans. The senior director of care 

management at BMC said that BMC, too, had "plenty of capacity 

for COVID[-19] patients who needed admission to the hospital" 

during the week of March 23, when Walsh and Clinton instead
15

decided to consolidate the veterans, but that she was not aware 

of anyone from the Soldiers' Home contacting her in mid- to late 

March asking for help.

e. Expert testimony. The Commonwealth presented the 

testimony of two experts to the grand jury. Dr. Asif Merchant

was the chief of geriatrics and extended care at NewtonWellesley Hospital, partner at New England Community Medical 

Services, medical director at a few nursing care facilities, and 

clinical professor at Tufts School of Medicine. He reviewed the 

medical records for the nine veterans who were moved to the 

dining room on 1 North on March 27, as well as the floor plan 

for the unit, testing results, nursing notes, a patients census, 

and materials from interviews. He testified that the 

consolidation of the two floors of Care Center 1, and the 

aftermath of the consolidation, increased the likelihood of harm 

to the named veterans because, inter alia, they were placed into 

a closely packed dining room with other veterans (unnamed 

veterans), at least three of whom were likely symptomatic.

Dr. Ronald Rosen was the chief of geriatrics at the North 

Shore Medical Center in Salem and was previously medical 

director at North Shore Physicians Group Extended Care. Rosen 

also reviewed the veterans' medical records and other relevant 

documents; he concluded that at least three of the veterans who 

were relocated to the dining room per the consolidation plan 
16

were symptomatic of COVID-19 prior to consolidation. He 

testified that housing symptomatic individuals with asymptomatic 

veterans violated basic infection control practices and 

increased the risk that the named veterans in the dining room 

would contract COVID-19. Further details of both experts' 

testimony are discussed infra.

2. Procedural history. In September 2020, the grand jury 

returned five indictments for elder neglect in violation of the 

elder neglect statute, G. L. c. 265, § 13K (d 1/2), one for each 

named veteran, against each defendant. The defendants filed 

motions to dismiss the indictments. A Superior Court judge held 

a nonevidentiary hearing and dismissed all the charges.9 The 

judge concluded that the record before the grand jury did not 

support a finding of probable cause that the defendants were

"[c]aretaker[s]" as defined in G. L. c. 265, § 13K (a), or that 

the defendants created a substantial likelihood of harm with 

respect to the named veterans under G. L. c. 265, § 13K (d 1/2), 

either by increasing the risk that the named veterans would 

contract COVID-19 or by causing the named veterans to suffer 

9 The grand jury also returned five indictments against each 

defendant for violation of G. L. c. 265, § 13K (e), alleging 

that the defendants permitted serious bodily injury to the named 

veterans; these indictments were also dismissed. The 

Commonwealth did not appeal from those dismissals.
17

dehydration and malnutrition. The Commonwealth appealed, and we 

granted its timely application for direct appellate review.

3. Discussion. a. Standard of review. "In considering a 

judge's decision to dismiss for lack of sufficient evidence [to 

support an indictment], we do not defer to the judge's factual 

findings or legal conclusions." Commonwealth v. Stirlacci, 483 

Mass. 775, 780-781 (2020). Rather, our review is de novo. 

Commonwealth v. Ilya I., 470 Mass. 625, 627 (2015).

Generally, "a 'court will not inquire into the competency 

or sufficiency of the evidence before the grand jury'" so long 

as the grand jury have heard sufficient evidence, when viewed in 

the light most favorable to the Commonwealth, to warrant a 

person of reasonable caution in believing that the identified 

defendant has committed each of the elements of the charged 

offense. Stirlacci, 483 Mass. at 780, quoting Commonwealth v. 

Robinson, 373 Mass. 591, 592 (1977). The "probable cause" 

standard is a "'considerably less exacting' standard" than proof 

beyond a reasonable doubt, which is required to support a 

conviction at trial. Stirlacci, supra, quoting Commonwealth v. 

O'Dell, 392 Mass. 445, 451 (1984).

b. Caretakers. The elder neglect statute prohibits a 

"caretaker of an elder or person with a disability" from

"wantonly or recklessly commit[ting] or permit[ting] another to 

commit abuse, neglect or mistreatment upon such elder or person 
18

with a disability." G. L. c. 265, § 13K (d 1/2). The 

defendants contend that the term "caretaker" under the statute 

applies only to frontline workers, who directly care for elders, 

and not to administrative decision makers, like themselves.

i. Decision makers. In interpreting statutes, "[o]ur 

primary goal . . . is to effectuate the intent of the 

Legislature." Conservation Comm'n of Norton v. Pesa, 488 Mass. 

325, 331 (2021), quoting Casseus v. Eastern Bus Co., 478 Mass. 

786, 795 (2018).

"[T]he general and familiar rule is that a statute must be 

interpreted according to the intent of the Legislature 

ascertained from all its words construed by the ordinary 

and approved usage of the language, considered in 

connection with the cause of its enactment, the mischief or 

imperfection to be remedied and the main object to be 

accomplished, to the end that the purpose of its framers 

may be effectuated."

Oracle USA, Inc. v. Commissioner of Revenue, 487 Mass. 518, 522 

(2021), quoting Commissioner of Revenue v. Gillette Co., 454 

Mass. 72, 76 (2009). As such, "our analysis begins with 'the 

"principal source of insight into legislative intent"' –- the 

plain language of the statute." Patel v. 7-Eleven, Inc., 489 

Mass. 356, 362 (2022), quoting Tze-Kit Mui v. Massachusetts Port 

Auth., 478 Mass. 710, 712 (2018).

The elder neglect statute defines "[c]aretaker" as

"a person with responsibility for the care of an elder or 

person with a disability, which responsibility may arise as 

the result of a family relationship, or by a fiduciary duty 

imposed by law, or by a voluntary or contractual duty 
19

undertaken on behalf of such elder or person with a 

disability. A person may be found to be a caretaker under 

this section only if a reasonable person would believe that 

such person's failure to fulfill such responsibility would 

adversely affect the physical health of such elder or 

person with a disability. Minor children and adults 

adjudicated incompetent by a court of law may not be deemed 

to be caretakers under this section." (Emphases added.)

G. L. c. 265, § 13K (a).

The term "responsibility" commonly refers to "[t]he 

quality, state, or condition of being duty-bound, answerable, or 

accountable." Black's Law Dictionary 1569 (11th ed. 2019). The 

term "care" means "charge, supervision," as in "responsibility 

for or attention to health, well-being, and safety," i.e., 

"under a doctor's care." Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/care [https://perma

.cc/Q6KX-47YC]. See Black's Law Dictionary, supra at 263

(defining "care" as "[s]erious attention, heed").

Under the elder neglect statute, the "responsibility may 

arise" in one of the following manners: "as the result of a 

family relationship, or by a fiduciary duty imposed by law, or 

by a voluntary or contractual duty undertaken on behalf of such 

elder or person with a disability." G. L. c. 265, § 13K (a). 

Moreover, the statute further limits the term "caretaker" by a 

rule of reasonableness; in particular, "[a] person may be found 

to be a caretaker . . . only if a reasonable person would 

believe that such person's failure to fulfill such 
20

responsibility would adversely affect the physical health of 

such elder or person with a disability." Id.

Thus, as it pertains to the defendants, a "caretaker" under 

the statute is an individual who contractually is duty-bound, 

answerable, or accountable for the health, well-being, and 

safety of an elder or person with a disability such that a 

reasonable person would believe that the individual's failure in 

this regard would adversely affect the physical health of the 

elder or person with a disability.10 Nothing in the plain 

language limits the term to frontline workers "directly" 

responsible for the care of an elder or person with a 

disability.11

10 The meaning of the statute is plain; contrary to the 

defendants' contention, it is not void for vagueness. See 

Commonwealth v. St. Louis, 473 Mass. 350, 355 (2015) ("A 

criminal statute must define the offense in terms that are 

sufficiently clear to permit a person of average intelligence to 

comprehend what conduct is prohibited" [quotation and citation 

omitted]). "[L]egislative language need not be afforded 

'mathematical precision' in order to pass constitutional 

muster." Id., quoting Commonwealth v. Reyes, 464 Mass. 245, 249 

(2013). "Caretaker" is sufficiently described and is not a term

that sets "a net large enough to catch all possible offenders, 

and leave[s] it to the courts to step inside and say who could 

be rightfully detained, and who should be set at large," Reyes, 

supra, quoting Smith v. Goguen, 415 U.S. 566, 573 n.9 (1974), 

and therefore it is not void for vagueness.

11 Our construction of "caretaker" to reach decision makers 

is consistent with the construction given to similarly worded 

statutes by our sister jurisdictions. See, e.g., Estate of 

Wyatt, 235 Ariz. 138, 140 (2014), quoting Webster's New 

International Dictionary 338 (3d ed. 1976) ("'Care' is 

ordinarily understood to mean 'CHARGE, SUPERVISION, MANAGEMENT: 
21

Nevertheless, the defendants maintain that the term is 

limited to frontline workers, excluding decision makers who

(like them) receive a salary and are responsible, ultimately, 

for the care of an elder or person with a disability. Their 

argument is grounded in the phrase "[r]esponsibility arising 

from a contractual duty," as to which the elder neglect statute 

provides: "it may be inferred that a person who receives 

monetary or personal benefit or gain as a result of a bargainedfor agreement to be responsible for providing primary and 

substantial assistance for the care of an elder or person with a 

disability is a caretaker." G. L. c. 265, § 13K (a) (iii). The 

defendants contend that this phrase further limits "caretakers"

to "primary" care providers, which in the health care industry 

has a specific and distinct meaning –- namely, "a medical 

professional (such as a general practitioner, pediatrician, or 

nurse) with whom a patient has initial contact and by whom the 

patient may be referred to a specialist." Thus, they argue, the 

responsibility for or attention to safety and well-being"); 

Delaney v. Baker, 20 Cal. 4th 23, 26-27 (1999) (elder abuse 

statute applies to nursing home administrators); Peterson v. 

State, 765 So. 2d 861, 864 (Fla. Dist. Ct. App. 2000) 

("'Caregiver' logically encompasses more than just the person or 

persons who do the actual physical work of caring for an elderly 

or disabled adult. It also reaches those who in fact are 

'entrusted' with the responsibility for seeing that an elderly 

or disabled adult is being cared for in a proper and humane 

manner"); State v. Boone Retirement Ctr., Inc., 26 S.W.3d 265, 

274 (Mo. Ct. App. 2000) (affirming elder abuse conviction of 

nursing home administrator).
22

term excludes decision makers who do not provide such "primary 

care" directly to an elder or person with a disability. We 

disagree.

To begin, the statute states that a contractual duty "may" 

be inferred where a person is compensated for providing primary 

and substantial assistance for the care of an elder or person 

with a disability.12 It does not state that such a duty "may 

not" arise outside of this context or that such a duty "may 

only" arise in such circumstances. By contrast, where the 

Legislature intended to limit the scope of "caretaker," it did 

so expressly. For example, the statute provides that "[m]inor 

children and adults adjudicated incompetent by a court of law 

may not be deemed to be caretakers" (emphasis added). G. L. 

c. 265, § 13K (a). See id. ("A person may be found to be a 

caretaker under this section only if a reasonable person would 

believe that such person's failure to fulfill such 

responsibility would adversely affect the physical health of 

such elder . . ." [emphasis added]).

Given the Legislature's deliberate choice to employ 

permissive but nonexclusive language in connection with the 

circumstances pursuant to which a contractual duty may be 

inferred and its use of mandatory, exclusive language in the 

12 The defendants mistakenly contend that this argument was 

waived.
23

same statute, we reject the defendants' proposed construction. 

See Commonwealth v. Dalton, 467 Mass. 555, 559 (2014) ("Where 

the Legislature grants discretion in some circumstances and 

denies it in others, the use of the word 'may' contrasted with 

the words 'may not' simply clarifies where discretion is granted 

and where it is forbidden . . ."); Fredericks v. Vartanian, 529 

F. Supp. 264, 268 (D. Mass. 1981), aff'd, 694 F.2d 891 (1st Cir. 

1982) (contrasting "may" in statute with "may . . . only if").

Moreover, the defendants' contention that the phrase 

"primary and substantial assistance" as used in the statute has 

the specific and distinct meaning prescribed to it in the health

care industry is belied by the statute's use of the same phrase 

in connection with describing caretaker status arising from a

familial relationship. Specifically, in describing when

"[r]esponsibility arising from a family relationship" may be 

inferred, the statute states that

"a husband, wife, son, daughter, brother, sister, or other 

relative of an elder or person with a disability is a 

caretaker if the person has provided primary and 

substantial assistance for the care of the elder or person 

with a disability as would lead a reasonable person to 

believe that failure to provide such care would adversely 

affect the physical health of the elder or person with a 

disability" (emphasis added).

G. L. c. 265, § 13K (a) (i). Most such familial caretakers will 

not fall within the technical definition of primary care 

providers as that term is used in the health care industry; yet 
24

the Legislature clearly intended to include familial caretakers 

within its scope.

The defendants' reading of this phrase suffers from an 

additional flaw. The statute provides that a contractual duty 

may arise where an individual is contractually obligated "to be 

responsible for providing primary and substantial assistance for 

the care of an elder or person with a disability," G. L. c. 265, 

§ 13K (a) (iii); it does not state that only those who 

contractually agree "to be directly responsible" for such care 

fall within its scope. Reading such an additional limitation 

into the statutory language is improper. See Commonwealth v. 

Newberry, 483 Mass. 186, 195-196 (2019), quoting Commissioner of 

Correction v. Superior Court Dep't of the Trial Court, 446 Mass. 

123, 126 (2006) ("Courts may not read into a statute a provision 

that the Legislature did not enact, nor 'add words that the 

Legislature had an option to, but chose not to include'").13

13 Our interpretation is consistent with the meaning 

ascribed to "caretaker" in the Disabled Persons Protection 

Commission (DPPC) statute, G. L. c. 19C, which also addresses 

the consequences of abuse of persons with disabilities. See 

Ciardi v. Hoffman-La Roche, Ltd., 436 Mass. 53, 62 (2002) 

("Statutes addressing the same subject matter clearly are to be 

construed harmoniously so as to give full effect to all of their 

provisions and give rise to a consistent body of law"). In that 

statute, "[c]aretaker" is defined as "a disabled person's 

parent, guardian or other person or agency responsible for a 

disabled person's health or welfare," G. L. c. 19C, § 1, which 

has been construed to "include not only direct care providers 

. . . but also those . . . responsible for arranging or 

supervising the provisions of care," DPPC Legal Advisory 
25

Contrary to the defendants' suggestion, this does not mean 

that "caretaker" status applies to anyone in the State chain of 

command, no matter how attenuated their connection to the 

provision of care to an elder or person with a disability. As 

discussed supra, whether an individual is a caretaker is limited 

by a rule of reasonableness.14 See G. L. c. 265, § 13K (a) ("A 

person may be found to be a caretaker under this section only if 

a reasonable person would believe that such person's failure to 

fulfill such responsibility would adversely affect the physical 

health of such elder or person with a disability" [emphasis 

added]).

Given that the meaning of the term "caretaker" is not 

ambiguous, we need not examine the legislative history, which in 

any event does not appear to support the defendants' proposed 

construction.15 See Osborne-Trussell v. Children's Hosp. Corp., 

Memorandum, Definition of a Caretaker Under M.G.L. c. 19C (rev. 

Sept. 30, 2017).

14 This rule, which applies to all "caretakers" under the 

statute, demonstrates that the defendants' concern that any 

volunteer or good Samaritan who provides "passing, secondary, or 

insubstantial assistance" to an elder would be considered a 

caretaker is unwarranted.

15 As the Commonwealth notes, the then Attorney General 

proposed statutory language adding the elder neglect statute, 

St. 2004, c. 501, § 8, to "more effectively prosecute nursing 

home supervisors who allow a pattern of abuse and neglect to 

occur in the homes" (emphasis added). Attorney General Reilly 

Commends Legislature for Passage of Bill to Protect Elderly, 
26

488 Mass. 248, 254 (2021), quoting Doherty v. Civil Serv. 

Comm'n, 486 Mass. 487, 491 (2020) ("If the statutory language is 

clear, 'courts must give effect to its plain and ordinary 

meaning and need not look beyond the words of the statute 

itself'" [alteration omitted]).

ii. Caretaker analysis for the defendants. The record 

before the grand jury supports probable cause that the 

defendants were caretakers within the meaning of G. L. c. 265, 

§ 13K (a). Each is an individual who contractually is dutybound, answerable, or accountable for the health, well-being, 

and safety of an elder or person with a disability such that a 

reasonable person would believe that the defendants' failure in 

this regard would adversely affect the physical health of the

elder or person with a disability.

Walsh was the "administrative head of the home," with 

authority to "appoint . . . a medical director, a treasurer and 

an assistant treasurer." G. L. c. 6, § 71.16 Clinton, as 

medical director, had "responsibility for the medical, surgical 

Disabled Citizens from Abuse, Neglect, U.S. State News (Jan. 4, 

2005).

16 In support of his conclusion that the superintendent and 

medical director were not "caretakers," the judge mistakenly 

relied on a 1970 opinion by the then Attorney General 

interpreting certain language in G. L. c. 6, § 71, which was 

removed subsequently by amendment. See St. 1971, c. 623, § 1. 

It has little bearing on the meaning of the version of the 

statute at issue in this case or the current statute.
27

and outpatient facilities and . . . [would] make recommendations 

to the superintendent regarding the appointments of all 

physicians, nurses and other medical staff." Id. Walsh had the 

authority to overrule Clinton's decisions. Lauziere reported to 

both defendants, evidencing their authority to oversee and 

direct nursing decisions.

Moreover, the defendants authorized the consolidation,

indicating that they exercised the authority to control the 

veterans' care. Walsh provided updates regarding the Soldiers' 

Home's COVID-19 response to Urena, talking with him daily to 

discuss COVID-19 protocols and conditions at the Soldiers' 

Home.17

Clinton exercised caretaking authority by, inter alia,

rejecting HMC's offers of assistance; participating in the 

decision to create a COVID-19 isolation space at the Soldiers' 

Home; deciding not to isolate HM when his COVID-19 test was 

pending, and then to isolate HM once he tested positive; and 

supervising doctors who cared for veterans. On this record, the 

17 The steps that Liptak immediately took when she replaced 

Walsh -– assessing the state of the building, convening meetings 

with infection control experts, organizing a testing and COVID19 status cohorting regime for veterans, and sending veterans to 

HMC and BMC -- which were all steps that Walsh could have taken 

in the weeks and days leading to his replacement, also 

demonstrated the superintendent's caretaking authority.
28

grand jury could find that there was probable cause that both 

defendants were caretakers.

c. Substantial likelihood of harm. The defendants also

challenged the grand jury's finding of probable cause that they 

"create[d] a substantial likelihood of harm" by authorizing the 

consolidation. General Laws c. 265, § 13K (d 1/2), provides 

that "[w]hoever, being a caretaker of an elder or person with a 

disability, wantonly or recklessly commits or permits another to 

commit abuse, neglect or mistreatment upon such elder or person 

with a disability, shall be punished." The statute defines 

"[n]eglect" as "the failure to provide treatment or services 

necessary to maintain health and safety and which either harms 

or creates a substantial likelihood of harm" (emphasis added). 

G. L. c. 265, § 13K (a). The theory presented to the grand jury 

focused on the evidence that the defendants "created a 

substantial likelihood of harm" to the named veterans by 

increasing the risk that the named veterans would contract 

COVID-19, and by causing the named veterans to become dehydrated 

and malnourished.

Again, "our analysis begins with 'the "principal source of 

insight into legislative intent"' –- the plain language of the 

statute." Patel, 489 Mass. at 362, quoting Tze-Kit Mui, 478 

Mass. at 712. To "create" is "to bring into existence," to 

"cause," or "to produce or bring about by a course of action or 
29

behavior." Merriam-Webster Online Dictionary, https://www

.merriam-webster.com/dictionary/create [https://perma.cc/N5B5

-BSMM]. The common meaning of "substantial" is "considerable in 

quantity," or "significantly great." Merriam-Webster Online 

Dictionary, https://www.merriam-webster.com/dictionary

/substantial [https://perma.cc/RLV8-HHUV]. "Likelihood" refers 

to "the chance that something will happen," or "probability." 

Merriam-Webster Online Dictionary, https://www.merriam

-webster.com/dictionary/likelihood [https://perma.cc/E6N5-CLMV]. 

See Commonwealth v. Boucher, 438 Mass. 274, 276 (2002) ("As 

commonly used and understood, 'likely' is a word that 

encompasses a range of probabilities depending on the specific 

context in which it is used. We conclude that something is 

'likely' if it is reasonably to be expected in the context of 

the particular facts and circumstances at hand"). Consequently, 

to "create[] a substantial likelihood of harm" means to engage 

in a course of behavior that produces a considerable chance or 

probability that harm will result.

i. Increased risk that the named veterans would contract 

COVID-19. In the light most favorable to the Commonwealth, the 

Commonwealth presented "sufficient facts to warrant a person of 

reasonable caution in believing," Stirlacci, 483 Mass. at 780, 

quoting Commonwealth v. Levesque, 436 Mass. 443, 447 (2002), 

that the defendants' decision to consolidate more than forty 
30

elderly veterans onto one floor designed for approximately onehalf that number, and particularly the decision to pack nine 

veterans into the dining room on that consolidated floor,

produced a more considerable chance or probability that the 

named veterans would contract COVID-19.18

Notably, Dr. Merchant testified that the decision to 

consolidate the floors violated basic infection control 

guidelines, which provided that patients who are symptomatic or 

who are suspected to be symptomatic should be separated from 

patients who are not showing symptoms. Consolidation, Merchant 

testified, created a "recipe for a higher-risk situation" 

because each named veteran shared a room with more veterans than 

before the consolidation, their beds were much closer to one 

another, veterans wandered in and out of rooms on the floor, 

staff caring for COVID-19 positive patients came into the dining 

room, staff did not use PPE correctly, and the veterans on the 

consolidated floor -- whether they were COVID-19 positive, 

showed COVID-19 symptoms, or were asymptomatic -- all shared the 

same bathrooms.

Moreover, Merchant reviewed the medical records of the nine 

veterans who were moved to the dining room on March 27, and 

18 Of course, the defendants should not be held to COVID-19

infection control standards other than the standards applicable 

at the time they made the decision to consolidate.
31

opined that, on that day, at least three of the unnamed veterans 

were likely symptomatic. Placing the named veterans into a 

closely packed dining room with the symptomatic veterans, Dr. 

Merchant opined, increased the risk of one or all of the named 

veterans contracting COVID-19. Three of the named veterans -–

GE, RT,19 and AP –- all tested positive on tests administered on 

March 31, four days after the consolidation; Merchant concluded 

that, given the incubation period for COVID-19, all three 

possibly contracted COVID-19 after being transferred to the 

dining room.

Dr. Rosen also opined that three of the unnamed veterans 

were symptomatic before consolidation, and concluded that

"cohort[ing]" them with the other veterans in the dining room –-

including the named veterans -- went against "not only common 

sense but basic infection control practices where you try to 

separate and isolate those that are more likely to be contagious 

from those that [are not]";20 in Rosen's view, the consolidation

19 RT was transferred to HMC on April 11 and passed away.

20 Dr. Rosen testified:

"[E]ven though all the veterans had been exposed it didn't 

mean that they had all already contracted COVID[-19]. In 

fact, we see that two of [the] veterans never tested 

positive for COVID[-19]. So at that time test results were 

not available for these veterans. So it just goes against 

basic principles of infection control[, specifically,] that 

you have to cohort people based on their risks and your 

medical decision making."
32

increased the risk that the named veterans in the dining room 

would contract COVID-19. Rosen concluded that the dining room 

was "almost an incubator for COVID[-19]"; beds were placed very 

close together without barriers between them, staff had 

insufficient knowledge of or poor access to PPE, doors were 

open, and residents comingled within the lounge area. The 

consolidation, Rosen opined, made "a very high-risk situation 

. . . even more high-risk."

Soldiers' Home staff also testified that consolidation 

violated known infection control practices and increased the 

risk that veterans would contract COVID-19. For example, a 

certified nursing assistant testified that she was "extremely 

shocked and surprised that they would put more people" on 1 

North because it would result in veterans "on top of each other 

. . . shoulder to shoulder." The state of the floor after 

consolidation "was the complete opposite of everything [she] 

learned" in nursing school. Additionally, Liptak testified that 

she thought consolidation "increas[ed] the odds" that COVID-19

negative veterans would contract COVID-19 by "exposing them to 

multiple people that were probably already COVID[-19] positive."

The defendants contend that because the record also showed 

that the veterans housed on the consolidated floor already had 

been exposed to COVID-19 prior to consolidation, they did not 

"create" a substantial risk of harm; in their view, the risk of 
33

harm already existed, and any increased risk caused by the 

consolidation is not covered by the statute. As set forth 

supra, however, to "create a substantial risk of harm" requires 

that the caretaker engage in a course of behavior that produces

a more considerable chance or probability that harm will result.

This definition does not exclude situations where there is a 

preexisting risk; the baseline comparator is not limited to 

hypothetical, risk-free situations existing ex ante.21 The 

inquiry whether the defendants "created" a substantial risk of 

harm is focused on the defendants' conduct and whether that 

conduct produced a more considerable chance or probability that 

harm would result than would have existed in the absence of that 

conduct.

Indeed, the defendants' construction makes little sense in 

the context of the provision of care, especially in connection 

with care for the elderly and patients with disabilities -- a 

population that is already at risk for multiple health 

21 Conduct may be criminalized where it increases an already

present risk. See, e.g., Commonwealth v. Carter, 481 Mass. 352, 

362-363 (2019), cert. denied, 140 S. Ct. 910 (2020) (affirming 

involuntary manslaughter conviction where defendant "creat[ed] a 

situation where there [was] a high degree of likelihood that 

substantial harm would result" to her boyfriend by encouraging 

him to get back into truck filled with carbon monoxide after he 

had saved himself from suicide attempt); Commonwealth v. Hadley, 

78 Mass. App. Ct. 405, 407-410 (2010) (defendant convicted of 

battery had "created a high degree of likelihood of substantial 

harm" to victim with serious preexisting medical conditions, 

including enlarged spleen, by kicking spleen).
34

conditions. Here, the record supports probable cause that the 

defendants' decision to consolidate the veterans on one floor 

without adequate spacing between patients, which resulted in 

veterans coughing on each other, and housing symptomatic 

veterans with asymptomatic veterans, like the named veterans, 

produced a more considerable chance or probability that harm 

would result to the named veterans.22

ii. Dehydration and malnourishment. The defendants' 

contention that the medical records for the named veterans do 

not support probable cause that the named veterans were 

dehydrated or malnourished fares no better. The record showed 

that, following consolidation, the veterans' medical records 

were "incomplete and disorganized," containing only "sparse," 

"brief" information. The grand jury were warranted in 

concluding that the medical records did not tell the complete 

story of the named veterans.

22 We have recognized that "particularly [for] the elderly 

. . . , [COVID-19] poses a substantial likelihood of serious 

illness or death." Foster v. Commissioner of Correction (No. 

1), 484 Mass. 698, 702, S.C., 484 Mass. 1059 (2020) and 488 

Mass. 643 (2021). Clinton correctly asserts that prosecutors 

will need to show, at any subsequent trial, that the decision to 

consolidate resulted in an increased risk; at this stage, we 

conclude only that the record supported probable cause that the 

defendants' consolidation order created that increased risk.

Clinton's contention that two of the named veterans were 

not harmed by the decision to consolidate is inapposite. The 

statute requires only that the consolidation decision created a 

substantial risk of harm.
35

The grand jury could rely on the ample testimony that the 

veterans on the consolidated floor were underfed and dehydrated. 

One social worker testified that veterans on the consolidated 

floor were not receiving sufficient hydration or food and that 

the named veterans were dehydrated and malnourished. When 

Liptak arrived, two veterans told her they were hungry, and she 

observed that there was insufficient staff to feed all the 

veterans on the floor. Indeed, her first priority when she 

arrived was to "separate and hydrate" the veterans.

Another witness testified that, when he visited his father 

on March 27, his father was so dehydrated that he did not think 

his father was receiving any hydration. Together, the 

information before the grand jury warranted a finding of 

probable cause that the consolidation produced a more 

considerable chance or probability that the named veterans would 

become dehydrated and malnourished. See Stirlacci, 483 Mass. at 

780, quoting O'Dell, 392 Mass. at 451 ("Probable cause is a 

'considerably less exacting' standard than that required to 

support a conviction at trial").

d. Wantonly or recklessly. Last, the Commonwealth 

presented sufficient evidence to support probable cause that, in 

consolidating the floors, the defendants did so "wantonly or 

recklessly." G. L. c. 265, § 13K (d 1/2). "Wanton or reckless 

conduct is 'intentional conduct, by way either of commission or 
36

of omission where there is a duty to act, which conduct involves 

a high degree of likelihood that substantial harm will result to 

another.'" Commonwealth v. Earle, 458 Mass. 341, 347 (2010), 

quoting Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). 

"Wanton or reckless conduct amounts to what has been variously 

described as indifference to or disregard of probable 

consequences." Commonwealth v. Godin, 374 Mass. 120, 129

(1977), cert. denied, 436 U.S. 917 (1978), quoting Welansky, 

supra.

The record before the grand jury showed that consolidation 

was inconsistent with infection control best practices known in 

March 2020. Dr. Merchant testified that, although COVID-19 

infection control guidance has changed throughout the pandemic, 

even in March 2020 when the defendants decided to consolidate 

the veterans, the guidance was to separate patients suspected of 

having COVID-19 from asymptomatic patients; it was a standard 

component of "basic infection control guidelines for many 

diseases." The grand jury also heard testimony that, according 

to an epidemiologist with the bureau of infectious disease at 

the Department of Public Health (DPH):

"[A]s early as March 4[, 2020,] it was firmly accepted 

among the various guidances [sic] that residents of 

different COVID[-19] statuses should not be grouped 

together. This has been firm and consistent guidance from 

the beginning and [has not] changed since the onset of the 

pandemic. The guidance has been to create physical 
37

separation between positive patients and asymptomatic 

patients."

In fact, Clinton apparently recognized the significance of 

the exposure risk, exercising particular caution with respect to 

himself and the doctors at the Soldiers' Home; on the same day 

that HM tested positive for COVID-19, Clinton began quarantining

at home for a week because he was in a high-risk population --

like the veterans in his care –- and he advised other doctors to 

minimize their time at the Soldier's Home as well. Yet the 

grand jury heard testimony indicating that, despite protecting 

himself and fellow doctors against the risk of exposure, Clinton

did not employ the same caution towards the veterans. See 

Commonwealth v. Carter, 474 Mass. 624, 631 (2016), quoting 

Commonwealth v. Pugh, 462 Mass. 482, 497 (2012) (conduct was 

subjectively wanton or reckless if "grave danger to others" was 

apparent and "defendant . . . chose[] to run the risk rather 

than alter [his] conduct so as to avoid the act or omission 

which caused the harm").

The grand jury also heard that determining the available 

resource in the community was critical, even in March 2020, in 

planning for infection disease control. Dr. Rosen testified 

that, in his opinion, when planning for a surge of the type 

anticipated in March 2020:

"One of [the] things you do is you plan out and you go to 

the community and you utilize all the resources you could 
38

have in the community. That's what the [Centers for 

Disease Control] recommended. So you would contact local 

hospitals and ask how they can help. Can they –- do they 

have any extra [PPE], do they have any extra staff, can 

they –- can they take other residents[?] You would contact 

all your other local nursing homes. Do you have capacity 

to help us cohort[?]"

The grand jury also heard testimony that the defendants had 

options that would have allowed them to conform the veterans' 

care to the then-existing infection control protocols. Cameron, 

the chief operating officer of HMC, called Walsh twice during 

the week of March 23 and never received a response.

Cameron also called Clinton directly, and over the course 

of two subsequent telephone calls, Cameron told Clinton that if 

the Soldiers' Home needed help, or if it wanted to hospitalize 

veterans, Clinton should contact Cameron. According to Cameron, 

Clinton did not accept the offer of assistance; he did not 

indicate that COVID-19 was a problem at the Soldiers' Home, ask 

whether he could transfer veterans to HMC, or ask for additional 

resources from HMC such as nursing help or any PPE. Moreover, 

according to the chief executive officer of HMC, if either 

defendant had indicated that he was experiencing staffing 

shortages or an outbreak, HMC would have been able to 

accommodate those veterans seven to eleven days before April 3. 

Moving veterans from the Soldiers' Home to HMC, the chief 

executive officer stated, would have required DPH's approval; 

that approval, the grand jury were told, was received on the 
39

"same day" as it was requested. BMC, too, had "plenty of 

capacity for COVID[-19] patients who needed admission to the 

hospital" during the week of March 23, but BMC did not receive 

any outreach from the Soldiers' Home before the consolidation. 

Rather, veterans were not sent to HMC or BMC until April 3.23

The grand jury thus heard testimony that would warrant 

finding probable cause that the defendants had a duty to act in 

accordance with the infection control practices that the 

Commonwealth's experts testified to be known by medical 

professionals in March 2020, and that in declining to pursue 

available options and instead consolidate the two floors, the 

defendants engaged in intentional conduct of omission that 

involved a high degree of likelihood that substantial harm would 

result. See Earle, 458 Mass. at 347. See also Commonwealth v. 

Gallison, 383 Mass. 659, 665-666 (1981) (evidence of parent's 

"inaction in light of her child's vomiting, diarrhea, high 

23 The testimony regarding the available alternatives to 

consolidation, which the defendants did not pursue, was provided 

by an investigator who interviewed these witnesses. This, of 

course, did not preclude the grand jury from relying on the 

investigator's report in issuing the indictments. See 

Commonwealth v. Stevenson, 474 Mass. 372, 376 (2016), quoting 

O'Dell, 392 Mass. at 450-451 ("We have consistently and without 

notable exception held that 'an indictment may be based solely 

on hearsay'"). At this stage, we do not "inquire into the 

competency or sufficiency of the evidence before the grand 

jury," so long as the grand jury "hear[d] sufficient evidence to 

establish the identity of the accused . . . and probable cause 

to arrest him . . . for the crime charged" (quotation and 

citations omitted). Stirlacci, 483 Mass. at 780.
40

fever, subsequent unconsciousness, and breathing failure," if 

believed, "would warrant the jury in concluding that the 

defendant should have been aware and indeed was aware of the 

increased risk of harm and thus [her] failure to remedy the 

situation was the kind of conduct which constitutes wanton and 

reckless conduct" [citation omitted]).24

4. Conclusion. Based on the foregoing, we reverse the 

order allowing the defendants' motions to dismiss.

So ordered.

24 The dissent provides a rough roadmap for the defendants 

to follow as they marshal a defense that their conduct was not 

wanton or reckless, excusing the defendants' decisions and 

inactions as either uninformed or merely negligent conduct in 

the face of the chaotic realities of the early days of the 

pandemic. In short, the dissent finds that the defendants did 

the best they could, given the situation with which they were 

faced. This, of course, is not the question on appeal. 

Instead, we are tasked with the question whether the grand jury 

record supports their finding of probable cause. In doing so, 

the grand jury were not required to "resolve[] all their doubts" 

or to weigh the evidence to assess whether it could "sustain a 

conviction" beyond a reasonable doubt (alteration omitted). 

Commonwealth v. Arias, 481 Mass. 604, 617-618 (2019), quoting 

Commonwealth v. Cartright, 478 Mass. 273, 283 (2017). As set 

forth supra, viewed in the light most favorable to the 

Commonwealth, the record warrants a person of reasonable caution 

in believing that the defendants' actions, and inactions, 

involved a high degree of likelihood that substantial harm would 

result to the veterans under their care. The record supports 

the grand jury's finding that the defendants acted in 

contravention of then-existing infectious disease control 

protocols and that they failed to pursue then-available options. 

At this stage, that is all that is required.
LOWY, J. (dissenting, with whom Cypher, J., joins). I 

agree with the court that that there was probable cause that the 

defendants were caretakers under the elder neglect statute and 

that there was sufficient evidence to support a finding of 

probable cause that the defendants' actions created a 

substantial likelihood of harm. I dissent because -- even 

viewed in the light most favorable to the Commonwealth -- there 

was insufficient evidence before the grand jury to support a 

finding of probable cause that the defendants acted wantonly or 

recklessly, as required to support an indictment.

As is often noted, hindsight is an exact science, but the 

protocols in the early days of the COVID-19 pandemic were 

anything but. At its core, this prosecution is nothing more 

than an exercise in assigning blame with the benefit of 

hindsight. A finding of probable cause that the defendants 

acted wantonly or recklessly in this case ignores the chaos, 

uncertainty, and unknowns present during the earliest days of 

the pandemic. Such a finding also fails to recognize the 

untenable staffing challenges the Soldiers' Home in Holyoke 

(Soldiers' Home) faced during this time.

Probable cause "exists where the facts and circumstances 

. . . [are] sufficient in themselves to warrant a [person] of 

reasonable caution in the belief that an offense has been . . . 

committed" (quotation and citation omitted). Commonwealth v. 
2

Coggeshall, 473 Mass. 665, 667 (2016). Context is critical to 

the probable cause analysis because "[i]n dealing with probable 

cause . . . we deal with probabilities. These are not 

technical; they are . . . practical considerations of everyday 

life, on which reasonable and prudent [people], not legal 

technicians, act" (emphasis added). Commonwealth v. Arias, 481 

Mass. 604, 617 (2019), quoting Commonwealth v. Cartright, 478 

Mass. 273, 283 (2017). In this case, we are tasked with 

evaluating probable cause as to whether the defendants were 

wanton or reckless while working with many patients whose 

conditions made isolation extremely difficult, and while 

simultaneously managing an extraordinarily reduced staff during 

the early days of a not yet fully understood pandemic.

As noted by the court, "[w]anton or reckless conduct is 

'intentional conduct, by way either of commission or of omission 

where there is a duty to act, which conduct involves a high 

degree of likelihood that substantial harm will result to 

another.'" Commonwealth v. Earle, 458 Mass. 341, 347 (2010), 

quoting Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). 

"The standard of wanton or reckless conduct is at once 

subjective and objective . . . ." Welansky, supra at 398. 

"Whether conduct is wanton or reckless is 'determined based 

either on the defendant's specific knowledge or on what a 
3

reasonable person should have known in the circumstances.'"1 

Commonwealth v. Carter, 474 Mass. 624, 631 (2016), S.C., 481 

Mass. 352 (2019), cert. denied, 140 S. Ct. 910 (2020), quoting 

Commonwealth v. Pugh, 462 Mass. 482, 496 (2012). "Proof of 

[wanton or reckless conduct] requires 'more than a mistake of 

judgment or even gross negligence.'" Commonwealth v. Dragotta, 

476 Mass. 680, 686 (2017), quoting Commonwealth v. Michaud, 389 

Mass. 491, 499 (1983). "[I]n all cases, not just those in which 

there is a horrific tragedy as there is here, we must look at 

the conduct that caused the result to determine whether it was 

wanton or reckless, not the resultant harm." Commonwealth v. 

Hardy, 482 Mass. 416, 424 (2019).

The court erroneously concludes that the defendants had 

safer options available to them other than consolidation and 

that the failure to pursue these options supported a finding of 

probable cause that the defendants' actions were wanton or 

reckless. Ante at . This conclusion is not supported by the 

1 "If based on the objective measure of recklessness, the 

defendant's actions constitute wanton or reckless conduct . . . 

if an ordinary normal [person] under the same circumstances 

would have realized the gravity of the danger." Commonwealth v. 

Carter, 474 Mass. 624, 631 (2016), S.C., 481 Mass. 352 (2019), 

cert. denied, 140 S. Ct. 910 (2020), quoting Commonwealth v. 

Pugh, 462 Mass. 482, 496-497 (2012). "If based on the 

subjective measure, i.e., the defendant's own knowledge, grave 

danger to others must have been apparent and the defendant must 

have chosen to run the risk rather than alter [his or her] 

conduct so as to avoid the act or omission which caused the 

harm." Carter, supra, quoting Pugh, supra at 497.
4

evidence. "To constitute wanton or reckless conduct, as 

distinguished from mere negligence, grave danger to others must 

have been apparent, and the defendant must have chosen to run 

the risk rather than alter his conduct so as to avoid the act or 

omission which caused the harm." Welansky, 316 Mass. at 398. 

Our cases demonstrate that "because wanton or reckless conduct 

requires a consideration of the likelihood of a result 

occurring, the inquiry is by its nature entirely fact-specific." 

Carter, 474 Mass. at 634. It is "[t]he circumstances of the 

situation [that] dictate whether the conduct is or is not wanton 

or reckless." Id.

Because our inquiry is fact specific, the world as we knew 

it in March 2020 is an essential consideration in this case. We 

have previously recognized the unknowns and absolute chaos 

created by the pandemic in the opinions that we issued in real 

time during what can only be described as a period of turmoil. 

See, e.g., Foster v. Commissioner of Correction (No. 1), 484 

Mass. 698, 702 (2020), S.C., 484 Mass. 1059 (2020) and 488 Mass. 

643 (2021) ("Despite a massive, concerted global containment 

effort, COVID-19 has continued to spread, both around the world 

and in Massachusetts. Few inhabited places worldwide have been 

spared . . ." [footnote omitted]); Goldstein v. Secretary of the 

Commonwealth, 484 Mass. 516, 525-526 (2020) ("We need not dwell 

long on how dramatically conditions have changed in 
5

Massachusetts since the Governor first announced a state of 

emergency arising from the COVID-19 pandemic on March 10. All 

who presently live in the Commonwealth have seen it [and lived 

it] . . ."); Committee for Pub. Counsel Servs. v. Chief Justice 

of the Trial Court (No. 1), 484 Mass. 431, 433, S.C., 484 Mass. 

1029 (2020) ("The 2020 COVID-19 pandemic has created enormous 

challenges for every aspect of our communities. . . . Health 

care workers on the frontlines of the epidemic are coming down 

with the virus in much higher percentages than others, while 

surgical masks and other basic protective equipment are in short 

supply, and hospitals with already close-to-capacity intensive 

care unit beds confront the possibility of inadequate resources 

to care for critically ill patients . . . . Everyday life is

heavily disrupted . . ."). A finding of probable cause in this 

case ignores the "practical considerations of everyday life"

(citation omitted), Arias, 481 Mass. at 617, at an unprecedented 

time when in many ways life as we know it was falling apart. 

The grand jury minutes reviewed as a whole, in the context of 

the world as we knew it in March 2020, rather than with our 

current understanding of COVID-19, show that the Commonwealth 

has failed to demonstrate that the defendants acted with an 

"indifference to or disregard of [the] probable consequences," 

Welansky, 316 Mass. at 399, when responding to the outbreak 
6

during the earliest stages of what we now know to be an 

unprecedented global pandemic.

The court relies on the testimonies of Drs. Ronald Rosen 

and Asif Merchant and an epidemiologist with the bureau of 

infectious disease at the Department of Public Health (DPH) to 

support a finding of probable cause that the consolidation was 

wanton or reckless. Ante at . Dr. Rosen testified that, in 

his opinion, when planning for an outbreak, such as the one that 

occurred at the Soldiers' Home, health care professionals go out 

into the community and "contact all your other local nursing 

homes" and "ask how they can help." Dr. Merchant testified that 

separating symptomatic and asymptomatic patients constituted 

"basic infection control guidelines for many diseases." And the 

epidemiologist testified that, from the beginning of the 

pandemic, the consistent guidance was that there should be 

"physical separation between positive patients and asymptomatic 

patients." While all of this testimony is relevant, its 

application here, even in the light most favorable to the 

Commonwealth, is through the perfect lens of hindsight.

At bottom, a finding of probable cause, based in large part 

on this testimony, disregards the specific "circumstances of the 

situation" at the Soldiers' Home, and it is those specific 

circumstances that ultimately dictate whether the consolidation 

was or was not wanton or reckless. See Carter, 474 Mass. at 
7

634. For one, reliance on this evidence fails to recognize that 

an extraordinary number of staff members were sick or just 

refusing to work and that attempts to find more staff were made 

to no avail. This testimony also discounts the real 

administrative obstacles to moving veterans to another facility. 

It further fails to take into account that the defendant David 

Clinton indicated that the Soldiers' Home was working to obtain 

additional personal protective equipment (PPE) prior to the 

consolidation and that the first request for assistance from the 

National Guard, which was made before the consolidation, was 

denied.

Perhaps most concerning, this testimony overlooks the 

practical, ethical, and legal difficulties of treating the 

facility's dementia patients. Many of the veterans at the 

Soldiers' Home were dementia patients, and it was common for

these patients to wander throughout their respective unit and in 

and out of other veterans' rooms. And according to the 

testimony before the grand jury, as a matter of medical ethics, 

these patients could not be "physically or chemically 

restrain[ed]." As late as March 26, 2020, DPH confirmed to the 

Soldiers' Home that it was "not appropriate" to confine veterans 

with dementia to their rooms, even as an infection control 

measure. All of these factors are critical to determining 

whether there was probable cause that under these particular 
8

circumstances the consolidation was wanton or reckless.2 See 

Commonwealth v. Carrillo, 483 Mass. 269, 270 (2019) ("The 

Commonwealth must introduce evidence showing that, considering 

the totality of the particular circumstances, the defendant knew 

or should have known that his or her conduct created a high 

degree of likelihood of substantial harm . . ." [emphasis 

added]).

The court also predicates its conclusion on the offer of 

help from Holyoke Medical Center (HMC), contending that as a 

result the defendants knew that they had safer options 

available. Ante at . Review of the grand jury minutes 

reveals only scant evidence about the content of calls where 

help was purportedly offered to the Soldiers' Home. The minimal 

evidence was presented through an investigator who was not a 

party to these calls, but nonetheless characterized the calls 

and pontificated about what would have happened if hypothetical 

questions had been asked on these calls.

2 Moreover, specifically as to the defendant Bennett Walsh, 

reliance on this testimony to support a finding of probable 

cause that he was wanton or reckless ignores the fact that the 

function of his role was primarily that of an administrator. He 

had no medical background or training, and ultimately the 

decision to consolidate patients was made during a discussion 

with medical professionals who worked at the Soldiers' Home. In 

light of his nonmedical background and reliance on the medical 

professionals in the building, it is unlikely that Walsh or a 

reasonable person in his position would know that a high degree 

of likelihood of substantial harm would result from the merger.
9

According to the testifying investigator, she spoke to 

Spiros Hatiras, the chief executive officer of HMC, and Carl 

Cameron, the chief operating officer at HMC. The investigator 

testified that Hatiras told her that in the days leading up to 

the consolidation, Hatiras asked Cameron to reach out to the 

Soldiers' Home to "prepare [HMC] for potential admissions from 

the Soldiers' Home." The investigator said Hatiras told her 

that "he believed [Cameron] eventually did talk to [Clinton]" on 

"March 24th or March 25th, and the second time on March 26th." 

According to the investigator's testimony, "Hatiras'[s]

understanding [was] that [Cameron] did not learn anything of 

significance other than that the Soldiers' Home had sick 

patients." During her grand jury testimony, the investigator 

was also asked a number of hypothetical questions. One question 

was whether "[it was] fair to say that" had Hatiras been asked 

to help accommodate residents before the consolidation, he 

"would have said, yes, and essentially would have reached out to 

[the proper authorities needed] to kind of coordinate the whole 

thing." The investigator responded, "That's correct."

The investigator also testified about her interview with 

Cameron. She testified that Cameron told her that "he had 

contact with the Soldiers' Home between . . . March 23rd . . . 

and March 25th." She stated that Cameron told her his initial 

telephone calls to both Bennett and Clinton were not immediately 
10

returned, but Cameron said he ultimately spoke to Clinton twice. 

The investigator testified that Cameron said the first call 

between him and Clinton occurred around March 25. The 

investigator –- who, again, was not on the call -- did not 

testify as to what anybody on the call told her was said. 

Rather, she characterized the first call as mainly about the 

Soldiers' Home employees who were becoming sick "as well as any 

PPE issues."

The investigator then said that "Clinton then reached out 

to . . . Cameron [a second time] likely on March 26th." The 

investigator, who was also not a party to this second call, 

testified that during this second call "Clinton told [Cameron] 

that the Soldiers' Home [was] having a tough time dealing with 

staff that was getting sick" and "that the Soldiers' Home was 

okay and that they were in the process of trying to secure 

additional PPE." According to the investigator, who I emphasize 

again was not on the call,3 Cameron offered to help the Soldiers' 

Home. However, to the extent that there was an offer for help, 

3 The court points out, in regard to the hearsay testimony 

concerning the telephone calls, that hearsay is admissible in 

grand jury proceedings. I agree. I point out that the grand 

jury witness was not on the telephone calls the witness 

describes, and that this witness pontificates on what the likely 

content to a hypothetical discussion would have been, as it 

relates to the weight of the evidence presented.
11

it was vague and not significantly elaborated upon before the 

grand jury.

The only information the investigator gave about this offer 

was that, according to the investigator, Cameron told Clinton 

"that if the Soldiers' Home needed help or they wanted to 

hospitalize veterans, [Clinton] should reach out to [Cameron] so 

that he could help manage the Emergency Room" (emphasis added). 

In response to a question about how Clinton responded to this 

undefined offer of help, the investigator did not provide a 

direct answer. Rather, she testified repeatedly about what 

Clinton did not say and questions he did not ask. And although 

she was not a party to the call, the investigator testified that 

Cameron did not "sense any panic in [Clinton's] voice." 

Importantly, the investigator never elucidated whether there was 

a discussion between Cameron and Clinton regarding the actual 

extent of the help being offered or the relevant government 

agency approvals that would have been required to move veterans 

from the Soldiers' Home to HMC.

Ultimately, these calls were, according to the testimony of 

the investigator, focused on PPE and preparing the HMC emergency 

room for potential admissions, respectively. To the extent that 

any help was offered to the Soldiers' Home, it was narrow. The 

investigator characterized the call as mainly a request for some 

warning so that Cameron could arrange logistics at the hospital 
12

in the event that individuals were transferred. Even in the 

light most favorable to the Commonwealth, this vague, undefined 

offer cannot be viewed as a readily available panacea to all the 

problems that the Soldiers' Home faced in the earliest days of 

the pandemic and, as such, the calls do not support a finding of 

probable cause that the defendants were wanton or reckless. In 

the midst of such pandemonium, the action or lack thereof under 

these circumstances is a thin reed on which to build a finding 

of probable cause that the defendants acted wantonly or 

recklessly.

To the extent that the court relies on the relevant agency 

approvals to move veterans being granted the "same day" it was 

requested and that another nearby hospital had the capacity to 

take veterans, in support of its conclusion, such reliance is 

misplaced. Ante at . The approvals of which the court

speaks were admittedly granted quickly but only after the 

cavalry had already arrived at the Soldiers' Home in response to 

the administration's involvement. Nothing in the record 

indicates how long it would have taken to cut through the 

bureaucracy necessary to obtain such approvals were the National 

Guard not already present at the Soldiers' Home. Reliance on 

speedy approval at that late stage also gives no credence to the 

critical fact that the consolidation only occurred after 

"reaching out to staffing agencies . . . [and] recent retirees" 
13

to alleviate the staffing shortage had failed and an initial 

request for assistance from the National Guard on March 27, 

2020, was denied. In other words, it is unconvincing to base a 

finding of probable cause on the capacity of another nearby 

hospital and the speed with which approvals were granted after 

the National Guard arrived especially where the record as a 

whole demonstrates that before the consolidation there were 

unsuccessful attempts to alleviate the staffing shortage and an 

initial request for National Guard assistance was both made and 

denied.

I recognize that the burden on the Commonwealth at this 

stage is not an onerous one, and there is no denying that the 

events that occurred at the Soldiers' Home in March 2020 were a 

tragedy. However, because I conclude that there was not 

sufficient evidence before the grand jury to support probable 

cause that the defendants acted wantonly or recklessly, the 

indictments lacked probable cause and were therefore properly 

dismissed. See, e.g., Commonwealth v. Stirlacci, 483 Mass. 775, 

780 (2020). This conclusion is evident when we properly 

consider the totality of the circumstances within the Soldiers' 

Home created by the avalanche of personnel who called out sick 

or refused to come to work, the practical difficulties created 

when dealing with dementia patients, the denial of an initial 

request for National Guard assistance, and the general 
14

circumstances in the Commonwealth during March 2020. See, e.g., 

Goldstein, 484 Mass. at 536 (Kafker, J., concurring) ("The 

COVID-19 pandemic has dramatically changed our current reality, 

not only in the Commonwealth, but across the globe, and not 

simply for a month or two").

We owe our best to our soldiers who, now in old age and 

frail health, face the twilight of their journey. Their service 

to our nation and the cause of liberty has passed. Their 

service, however, entitles them to the opportunity to live out 

their days in comfort and safety. There can be no doubt that 

what occurred at the Soldiers' Home in March 2020 was a tragedy. 

And in the face of such tragedy, perhaps hurling blame and 

subjecting the defendants to imprisonment might salve our 

conscience. But criminalizing blame will do nothing to prevent 

further tragedy or help unravel the complex reasons why the 

responses of the Soldiers' Home and so many nursing homes proved 

inadequate in the nascent days of the pandemic. Since the 

testimony in the grand jury failed to constitute probable cause 

to criminalize such blame, I respectfully dissent.