Manitoba wants ER death lawsuit thrown out

A Manitoba court must decide what to do with a court bid by the province to quash a lawsuit by the family of Brian Sinclair, a homeless man who died after waiting 34 hours in a hospital emergency room in 2008.

A Manitoba court must decide what to do with a court bid by the provincial government to quash a lawsuit by the family of Brian Sinclair, a homeless man who died after waiting 34 hours in a hospital emergency room in 2008.

Lawyers for the province and the Winnipeg Regional Health Authority (WHRA) asked the Court of Queen's Bench on Monday to dismiss the majority of the civil suit, which was filed by the Brian Sinclair estate and family in September 2010.

The lawsuit seeks $1.6 million and names 18 defendants, including several medical staff, the WRHA and the Manitoba government.

Monday's hearing began at 10 a.m. and ran until shortly before 4 p.m. The court reserved its decision.

"I committed a long time ago that he's not going to die in vain," Robert Sinclair, a spokesman for Brian Sinclair's family, told reporters outside the courthouse after the hearing.

"He's going to leave something behind to this city and to the people of this city, and that's a better health system."

Sinclair, a 45-year-old aboriginal 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 triage desk and spoke to an aide before wheeling himself into the waiting room.

It took 34 hours for someone in the waiting room to approach a security guard and say they believed Sinclair was dead.

He was rushed into the treatment area where emergency staff tried unsuccessfully to revive him.

Died of preventable blood infection

An autopsy later determined he died as a result of a blood infection brought on by complications of a bladder infection caused by a blocked catheter.

His death could have been prevented if the blood infection had been treated, Manitoba's chief medical examiner, Dr. Thambirajah Balachandra, said within days of the incident.

The years following Sinclair's death have been difficult for his family, who want to know the truth about what happened to him, Robert Sinclair said.

"On his immediate family — sisters, mother — it's been hard on them. They want the truth as well, and I can't give it to them. Maybe someday we will," he said.

"We've been patient for four years, almost. I guess we got to wait another few years. Well, we're willing to wait."

In its statement of claim, Sinclair's family argues that the lack of care Sinclair received violated his right to life, liberty and security of person — all of which, they say, are guaranteed under the Charter of Rights and Freedoms.

The Manitoba government disagrees, accusing Sinclair's family of mischaracterizing those charter-protected rights.

That section of the charter only guarantees those rights in the context of "fundamental justice," according to court documents.

The province also says that under the Canada Health Act, it was not the government's personal duty to care for Sinclair. Its duty is to care for the public at large, it argues.

Family paid $110K

Lawyers for the health authority say Sinclair's rights under the charter ended with his death, so his family cannot sue or request damages on those grounds.

They also told the judge that a cheque for $110,000 was issued to Sinclair's family earlier this month to settle a portion of the lawsuit that dealt directly with the family’s claim for loss of care, guidance and companionship for his wrongful death.

"The Winnipeg Regional Health Authority has consistently acknowledged the role it played in the death of Brian Sinclair," the WRHA stated in a news release Monday.

"He was a patient who came to the Health Sciences Centre seeking help which the hospital failed to provide. His death was preventable," the release said.

"As soon as they were able to contact his next-of-kin, representatives of the hospital immediately apologized to them."

After receiving the financial settlement, the Sinclair family filed a notice of discontinuance for a part of the lawsuit under the Fatal Accidents Act, which allows family members of a deceased to seek damages for their own suffering.

"The motion in court today is to strike out a number of the remaining portions of the lawsuit which the WRHA maintains are not legally sustainable," states the news health authority's new release.

One of those "remaining portions" is the family's claim for legal costs for the upcoming inquest, the WRHA lawyer told the court on Monday.

An inquest has been called into Sinclair's death, but it has been delayed by a court action and a criminal investigation.

With files from The Canadian Press