Lawsuit of man who died during 34-hour ER wait should be dismissed: Manitoba

WINNIPEG - The province of Manitoba is asking a judge to dismiss a lawsuit filed by relatives of a homeless man who died during a 34-hour wait in an emergency room.

The province says the Charter of Rights and Freedoms does not guarantee a right to life, liberty and security — the argument being made by the family.

Provincial lawyers say Brian Sinclair lost those rights when he died in the ER at Winnipeg's Health Sciences Centre in September 2008. The same argument is being made by the Winnipeg Regional Health Authority which runs the hospital.

The arguments centre on a lawsuit filed last year against the health authority, the government of Manitoba and 13 other people.

Lawyers for the Sinclair family have "mischaracterized the right protected" by the charter, the province says.

"It does not guarantee a right to life, liberty and security of the person," court documents state. "It guarantees a right not to be deprived of life, liberty and security of the person in accordance with the principles of fundamental justice."

The province also argues in the documents that the government wasn't negligent in Sinclair's death because it didn't have any personal duty of care to the homeless man under the Canada Health Act.

"Those obligations imposed on Manitoba are obligations owed to the public at large," the documents say. "They do not create a duty of care to any particular individual."

Lawyers compare Sinclair's case to that of an Ontario resident who died after being bitten by a mosquito infected with West Nile Virus. The family's lawyers argued the Ontario government should have prevented the outbreak, but the court found Ontario did not "owe a personal care of duty" to the victim.

The Sinclair family's lawyers say the arguments are offensive and are based on a "perverse" interpretation of the charter. The province's interpretation would "eviscerate charter rights and freedoms guaranteed to everyone."

"This is a novel approach, but it is not a legitimate basis for striking out the plaintiff's claim," the Sinclair lawyers argue.

"Imperilling the safety of the public in such a way that someone as vulnerable as Brian Sinclair arbitrarily would not get any medical treatment or attention as he waited in a Manitoba hospital emergency room for 34 hours, in pain, vomiting, and dying, is not in accordance with any conceivable principle of fundamental justice.

"It offends the most basic Canadian standards about the treatment of patients in hospital emergency rooms."

Sinclair, a 45-year-old double amputee, died of a treatable bladder infection three years ago while waiting for care.

Security tape showed he went to the triage desk and spoke to an aide before wheeling himself into the waiting room. About 33 hours later, someone in the waiting room approached a security guard to say it appeared Sinclair was dead. He was rushed into the treatment area where emergency staff tried unsuccessfully to revive him.

An inquest has been called into his death but has been delayed by court action and a criminal investigation.

Lawyers for the province, health authority and Sinclair family are expected to make their case before a judge Feb. 13.