This is the story of Pedro, the fictitious name of one of the complainants from the Elder de Tomelloso residence in Ciudad Real, who prefers not to reveal his identity: “On March 8 they told me that my father had a fever, but they would not let me speak with the.
Then they no longer picked up the phone. Suddenly one day a senior official from Castilla La Mancha appears at a press conference[the general director of Public Health, Juan José Camacho] saying that in the residence there was neither PPE [personal protective equipment], nor protocols, nor doctor, nor anything.
So they knew everything, and I hope they confirm it at trial. I was stunned. I live far away and we were confined. They finally called me on the 20th to tell me that my father had tested positive.
Only on the 27th we were able to make a video call, and I can’t get the image out of my head: my father was skin and bones, like from a concentration camp. It was only two minutes, I couldn’t take it anymore. His last words were: ‘Get me out of here, there are many dead’.
I asked what they were medicating him with, and they said nothing. They also didn’t tell me if there was a doctor. At 92 years old, from day 8 he had a fever to 31 he endured a lot, in a hospital perhaps he could have been saved, but they left him no chance.
Why didn’t they take it? Didn’t he have the right to live because he was 92 years old? I did not sleep from anxiety, I thought that I was to blame for my father’s death. It cannot be that my father lived a civil war, a dictatorship, and died in a democracy as in a war ”.
DVD 1029 (11-27-20) Concesol, residence for the elderly in Madrid. In this residence, they currently allow family visits, respecting all security measures. Firstly, Vicenta Martin, 92 years old, and her son Gabriel Montes, 60 years old.
In the background Aurelia Betes, 84 years old, and her daughter Raquel Berrocal, 45 years old. Photo: Olmo Calvo
Amnesty International denounces that in the first wave five human rights were violated in the residences
This is one of the many cases against residences that are in courts throughout Spain and that, after a great barrage of complaints in the first wave, begin to take shape. After months of silence, last week there were news.
In the Community of Madrid a judge has charged the director of a residence , and the Prosecutor’s Office has denounced two people in charge of another private center . The Supreme Court also rejected the complaints against the Government for the management of the pandemic, but confirmed that the investigating courts must investigate the residences .
The story told by the families who have denounced the Elder de Tomelloso residence is astonishing. The 31-year-old director disappeared after the first positive, on March 10, and left the workers to their fate, without protocol and without material, according to the complaint of eight relatives of the deceased. Staff had to buy masks in a Chinese bazaar, 50 for 120 workers.
The doctor only went two hours and on the fourth day he also went on leave. The director was unaccounted for, neither the regional health service, Sescam, could not locate him, say the complainants.
On the fifth day, with ten dead, he finally appeared, but only to say on Facebook that everything was going well with the labels “StopBulos” and “StopMaldad”. In six days 15 people died and the center was intervened by the Government of Castilla-La Mancha.
As of June 76 elderly people died, according to the complaint. The regional Executive counts 74. In another residence that is next door and took measures eight people died. This newspaper has contacted the residence hall, owned by the Elder Foundation, a non-profit organization, to speak with the director, but the center did not want to give its version of what happened.
The director of the residence, councilor of the PP in the town and who has resigned this month from that position, is a journalist by profession, he had previously been on regional television. Despite what happened, he returned to the center in June and remains in the position, as confirmed by the Government of Castilla-La Mancha.
“We were very surprised that the foundation put it back, then we learned that his father is the president of the board of trustees,” says the lawyer for the families, Luis Miguel Polo. The case, admitted for processing, is already being investigated by a court.
“As a result of it being published in the media, we learned that this man is a journalist, and we are struck by the fact that a journalist is managing a nursing home.” Castilla-La Mancha was the community with the most deaths in the first wave, 161 per 100,000 inhabitants, according to data from the National Institute of Statistics (INE).
35%, in residences. Ciudad Real was the second province in Spain, after Segovia, with the highest mortality rate: 352 deaths per 100,000 inhabitants.
Faced with social alarm in March for cases like this, the State Attorney General ordered the provincial prosecutors to investigate the situation of these centers throughout the country. For months he gave a weekly account of the figures, hundreds of open investigations.
But despite the spectacular numbers, many were merely informative, or responded to generic complaints from parties or associations. Dozens were filed for lack of evidence , and the Prosecutor’s Office stopped reporting the matter in July. It seemed that the judicial process was deflating and nothing was moving, until this month.
How many investigations are there right now in the courts? Nobody knows. The latest report from the Attorney General’s Office, dated July 20, included 213 open criminal proceedings and 30 ongoing legal proceedings in Spain.
Most of the procedures were in Madrid (113), which had 28% deaths in residences until the end of May, in the first wave; Catalonia (28), with 34% of deaths in these centers, and the two Castiles, with about twenty each.
These two communities were, after Navarra, the ones that registered the most deaths in residences: Castilla y León 37% and Castilla-La Mancha, 35%, according to the INE. Since then, the Prosecutor’s Office has not collected this information and is unaware of the situation.
As a reference, that of Madrid indicates that right now there are 13 legal proceedings and 18 proceedings in process, and that of Barcelona maintains six. In more detail, in Madrid 133 deaths are investigated and there are three residences with a high number of deaths: one with 33 and two with 22. In the others, between one and three deaths are investigated.
Another case, this time in Murcia, is related by Encarna Vera, one of the 13 women who has denounced the Caser Santo Ángel residence. There, 34 people died until June 22, according to data from the Ministry of Social Policy, half of those who died in all Murcian residences in the first wave.
The complainants believe there are at least 40 of them. Among them, Encarna’s mother, 89 years old. “Tired of not knowing anything about our relatives, one of us went to the residence, a woman came out and told her that she wanted to speak with a person in charge. It’s me, she said. It was the cleaning lady.
That day there was no one else. 80% of the staff left. There was a single doctor for 232 people. They died more from inattention than from covid, we suspect that due to the lack of personnel they were sedated and left locked in their rooms, my mother died dehydrated. And we paid almost 2,000 euros a month.
They were lying to us, they said everything was going well. We went to the door and they wouldn’t let us see them, nor video calls, and I asked for it 20 times. We left there crying. Now I regret not having broken the door down. The only thing left for us is to fight in court and to be told the truth ”.
Sonia Vivo, another of those affected, has an atrocious experience of the chaos that they denounce: after the death of her mother,A person in charge of the center called her to tell her that they were finally going to do a PCR .
The peculiarity of this case is that, unlike other regions, in Murcia there was no hospital collapse. It was the community that registered the fewest deaths in the first wave, but 34% were in residences, according to INE data.
“They cannot claim it was an emergency. They said that the residences were medicalized, but this was not the case, they had no personnel, no means, or respirators, ”explains the families’ lawyer, Juan Carlos Mellado. Caser Residencial, a group with 20 centers in Spain, did not want to give this newspaper its version of what happened.
The lawyer Carlos Vila, from Marea de Residencias, is the one who has obtained the imputation of the director of a center and has 15 cases in Madrid and another six residences in the community.
He believes that the most relevant thing is “that it will be investigated and that it will clarify what has happened.”
Faced with the argument that a health system in a catastrophic situation prevented transfers to hospitals, it alleges that “whoever had medical insurance went to a private hospital, and the state of alarm allowed them to be sent to these centers, and it was not done, just as They said that they were going to medicalize the residences, and it was not done either .
Criticisms of the passivity of the Prosecutor’s Office are repeated in many cases. The lawyer Carlos Sardinero, of Sardinero Abogados and collaborator of the association El Defensor del Paciente, accumulates “hundreds of cases” in Madrid and none have been filed.
He does not understand that, “in the face of such an obvious fact”, the Prosecutor’s Office has not adopted “a more energetic position” and believes that “he may have to turn around. Francisco Javier Álvarez, professor of Criminal Law at the Carlos III University, is also critical:
“The cases are being investigated thanks to private impulses. But the mere existence of protocols that denied health care and the high number of deaths deserved that the Prosecutor’s Office had acted. I have no doubt of the enormous criminal and social significance of what happened in nursing homes ”.
The case of Tomelloso, for example, It appeared in all the media, but the Ciudad Real Prosecutor’s Office has declared that it has not investigated the case because it did not receive any complaint.
The autonomous government itself announced in March that it would investigate and report it, but now explains that when the Superior Court of Justice began its investigation in the residences, it left it in their hands. The attorney for the complainants has no record of any Public Prosecutor’s Office having acted.
Pedro in Ciudad Real, Encarna in Murcia, and many others want justice and the truth to be known, but they already have a great distrust in the system. “The courts have put the issue to sleep, they don’t want to get involved,” laments Encarna.
They presented their complaint in May “and seven months later they are still passing the hot potato between court number 6 and number 9, to see who admits it for processing.” He believes that the Prosecutor’s Office should have acted ex officio, it is late and if they had not moved in the media and taken to the streets they would have ignored them.
In Murcia, the scandal has been unleashed in this second wave with the publication of internal photos of residences, taken by the assistants who came to support centers with problems. The Murcia Prosecutor’s Office, which has archived all the proceedings of the first wave, He has now opened an investigation in several residences and sees “interesting” signs.
“You have to see case by case,” explains the prosecutor, José Luis Díaz Manzanera. Regarding the resistance they encounter, Sonia Vivo adds in Murcia: “We have to hire experts from outside, because those from here do not want to confront the Administration.” Pedro concludes: “I have taken away the desire to vote in this country. Now I just hope that at least the judge does his job. ”
The accusations in the complaints are of reckless homicide, abandonment, degrading treatment, injuries, mistreatment. How likely is it that they will prosper? Manuel Cancio, professor of Criminal Law at the Autonomous University of Madrid, believes that there should not be so many case files, “an investigation must be opened and investigated.”
“Lawsuits will be safe, convictions we’ll see,” he thinks, like most of the jurists and lawyers consulted, because reckless homicide is difficult to prove. “Those who make the wrong management decisions may respond, just like those who signed protocols not to send the elderly to the hospital,” he says.
The problem is to determine a cause-and-effect relationship and that a deceased person could have survived if it were not for the imprudence attributed. But Cancio points out that, for example, The Supreme Court established in the Madrid Arena case that “an increase in risk” of the person is enough. If applied, there would be convictions.
A Supreme Court magistrate consulted by this newspaper sees it difficult for criminal proceedings to prosper, when hospitals rejected income from residences due to force majeure, but he is very clear about the subsequent civil demands for compensation.
The judgment of the Supreme Court on Friday points out that line: “Damages linked to the abnormal functioning of a public service are directly compensable in the contentious-administrative jurisdiction without any other exclusion than those caused by force majeure.”
Resident directors consulted want the investigations to be carried out to the end, as they assure that the majority did everything in their power to try to refer the elderly to hospitals. Although they recognize that in the sector they are restless. They fear that the responsibility will end up falling on them.
The most flagrant cases are those that are coming forward. Last October, the Madrid Prosecutor’s Office filed the first complaint that it received on the subject as it did not appreciate “criminal relevance” and set the general criteria to be followed in the rest of the open cases.
The complaint this week for reckless homicide to the doctor and the manager of a residence, they explain from the public prosecutor’s office, is due to a different behavior than most.
The Prosecutor’s Office pointed out that the doctor did not contact the geriatrician who should decide on the referral of the resident until eight days after she had symptoms. The 85-year-old woman died the day after her transfer.
Carlos Sardinero explains that if those responsible for the centers used all the means available to them to try to provide medical care, there is no criminal liability. But he points out that if there was abandonment, there is a crime. He points out that they will be the first called to declare because they are “the weakest link”.
But they are “the beginning, since they will provide data on the indications they received from public administrations.” Sardinero assures that one of the keys is that the judicial actions are individual, rather than massive.
Ignacio Palomar, director of Servilegal Abogados, who defends about twenty cases, recognizes the difficulty in proving criminal responsibility. “It is likely that many are filed, we have it, but it is crucial that there is an instruction and an investigation, given the opacity of what happened,” he says.
The instruction provides the proof that allows a subsequent civil compensation, in the event that the criminal procedure is archived.
“The calls to emergencies will be known, the personnel will be questioned, it will be seen if there has been an actual attempt to refer to hospitals, it will be seen when the individual protection equipment and prevention means were supplied, and when effective measures were taken, etc.” Regarding the civil route,
While awaiting justice, Pedro remembers: “I went alone to bury my father. I didn’t know if I was burying my father or a box, because I haven’t seen it, I haven’t watched it. They just gave me his watch. I always slept with him ”. Then they handed him his belongings. The portfolio and the DNI were missing. They have yet to appear.