Province denies responsibility for COVID-stricken woman’s 2021 death in lawsuit statement of defence

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The provincial government argues it did nothing to cause injury or damages to an intensive-care patient who died after a failed attempt to airlift her to Ontario at the height of the COVID-19 pandemic, in a response to a lawsuit filed by her family.

Krystal Mousseau, a 31-year-old mother of two from Ebb and Flow First Nation, died May 25, 2021, after an attempt to airlift her from Brandon to a hospital in Ottawa for care. At the time, some patients were being flown out of province because Manitoba intensive-care units were at capacity.

Her family filed the lawsuit against the Manitoba government, Shared Health, the Prairie Mountain Health Authority, Brandon’s hospital, Keewatin Air, as well as two unnamed flight staff members and one Brandon ICU nurse, in Manitoba’s Court of King’s Bench in March 2023, arguing the defendants breached their duty to care for her.

The family claims Mousseau’s death was wrongful and preventable, claiming the court should hold the province responsible for cutting critical-care beds in 2019, contracting out air ambulance service and failing to properly plan for the COVID-19 pandemic.

In its statement of defence, the Manitoba government argues all of its decisions and actions were made according to its statutory responsibilities and powers. It’s seeking to have the claim against it dismissed.

“It committed no act or omission that was a cause of any injury or damage to the plaintiff,” reads the province’s June court filing.

The province said, generally, the delivery of health care is through corporate bodies separate from the government itself, including Shared Health and regional health authorities.

The government admitted in its filings that it reduced the number of critical-care beds in 2019, but said it was a policy decision as part of Manitoba’s planned health-system transformation and intended to improve efficiency.

“The decision was based on recommendations made by experts,” the filing says, citing a report commissioned by the province, then led by premier Brian Pallister’s Progressive Conservative government, at the time of the planned transformation.

The province operated an air ambulance service from 1986 to 2019, and began looking to privatize it in 2018. In December 2020, the service was transferred to a private provider.

“Manitoba says its decision to privatize air ambulance services in Manitoba was a policy decision based upon consideration of a variety of social, financial and policy considerations, and was not arbitrary,” reads the government filing.

According to the family lawsuit, Mousseau had COVID-19 and was on a ventilator and in a medical coma.

She was to be transported to Ottawa a day earlier, but her condition deteriorated in an ambulance taking her to the airport. She was returned to the Brandon Regional Health Centre and died the following day.

The family is seeking compensation, as well as declaration the government and Shared Health violated her Charter right to life and security of person.

The province argues the estate has no standing to bring a Charter relief action, and denies having violated Mousseau’s rights at all.

The government says any damages payable to the family would be limited to those available under the Fatal Accidents Act.

Last year, the province filed a motion in a bid to have itself removed from the claim, arguing the only allegations against Manitoba relate to core policy decisions of government that cannot be the subject of a claim of negligence.

Last year, the three health bodies, in a joint statement of defence, and Keewatin Air in its own filing, denied wrongdoing, breaches of duty or legal obligation. The defendants also denied that the family has a valid claim under the Charter of Rights and Freedoms, as alleged.

The health authorities and hospital, as well as the airline, also asked for the court to dismiss the lawsuit with costs.

erik.pindera@freepress.mb.ca