The family of a homeless Manitoba man who died after waiting 34 hours in a hospital emergency room, says it's frustrated that a court has struck out parts of its lawsuit.
The Manitoba Court of Queen's Bench ruled on Tuesday that Brian Sinclair's estate "did not have the right to make a claim for the breach of [his] right to life under the Charter of Rights and Freedoms," Sinclair's family said in a release.
The court also ruled that Sinclair's estate cannot sue officials for wrongfully disclosing his personal health to the public after his death.
In both cases, the court ruled that the charter cannot be applied in the case of someone who is dead.
"The actions of a state authority — in this case, a hospital — were themselves the cause of the breach of somebody's right to life," Vilko Zbogar, one of the lawyers representing Sinclair's family, told CBC News on Tuesday.
"A claim of that nature has to be able to be brought by somebody."
Sinclair, a 45-year-old homeless man who was a double amputee with a speech problem, was found dead in his wheelchair at the Winnipeg Health Sciences Centre on Sept. 21, 2008.
Security tape showed Sinclair went to the hospital's triage desk and spoke to an aide before wheeling himself into the waiting room.
Death was preventable
It took 34 hours for someone in the waiting room to approach a security guard and say they believed Sinclair was dead.
An autopsy later determined that Sinclair died as a result of a blood infection brought on by complications of a bladder infection caused by a blocked catheter.
Manitoba's chief medical examiner, Dr. Thambirajah Balachandra, said within days of the incident that Sinclair's death could have been prevented if the blood infection had been treated.
The lawsuit filed by Sinclair's estate seeks $1.6 million and names 18 defendants, including several medical staff, the Manitoba government and the Winnipeg Regional Health Authority.
In its statement of claim, Sinclair's family argued that the lack of care Sinclair received violated his right to life, liberty and security of person — all of which, they said, are guaranteed under the charter.
But the Manitoba government disagreed, accusing Sinclair's family of mischaracterizing those charter-protected rights.
On Tuesday, the court also said there were insufficient facts alleged to support the family's claim that the province "caused a public nuisance by creating and allowing the operation of an inherently dangerous health-care facility."
The family can still sue the WRHA for out-of-pocket costs related to an upcoming inquest into Sinclair's death.
The family's legal team says it plans to appeal the court's decision.