Judge must rule man's death during 34-hour ER wait a homicide: lawyer
Thursday, Jun 12, 2014 03:00 pm
WINNIPEG - Lawyers for the family of an aboriginal man who died during a 34-hour emergency room wait say an inquest judge must rule the death a homicide.
They have also asked the judge to recommend Manitoba call a public inquiry into how aboriginal people are treated in the health-care system.
Vilko Zbogar told Judge Tim Preston that failing to provide medical care to a sick person is akin to failing to provide the necessities of life.
"It was homicide," Zbogar said during final arguments Thursday at the Brian Sinclair inquest. "You just need to find that the death was caused by human contribution."
Police have already investigated the death but did not lay any criminal charges.
It's been almost six years since Sinclair, a double-amputee, died at Winnipeg's Health Sciences Centre. He was referred to the emergency room in September 2008 because of a blocked catheter.
He languished in the waiting room for hours, vomiting and slowly dying from a treatable bladder infection, but was never asked if he was waiting for medical care. An internal report following his death found some staff assumed he was drunk and waiting for a ride or was a homeless man seeking shelter.
Murray Tratchenberg, another lawyer representing the family, said those racist assumptions about the dishevelled double-amputee led to his death.
Why Sinclair sat in his wheelchair slowly dying for hours without any medical attention cannot be explained by an overcrowded emergency room, by the physical layout or even by the fact that the 45-year-old was never triaged, he said.
Many nurses, aides and security guards saw Sinclair in the emergency room but assumed he was "sleeping it off" or homeless, Tratchenberg said.
"We're talking about negative stereotyping ó stereotyping that led to numerous assumptions being made, all of which significantly contributed to Mr. Sinclair's death," he told the inquest. "It caused medical staff, who had the responsibility to intervene and provide Mr. Sinclair with the care he needed, not to do so."
The inquest didn't delve into why those assumptions were made or what to do to prevent them, the Sinclair lawyers argued. The Sinclair family lawyers withdrew from the inquest halfway through when the judge chose to focus on overcrowding in emergency rooms, but they returned for final recommendations.
The judge should urge the Manitoba government to call a public inquiry into how aboriginal and marginalized people are treated in the health-care system, they said.
The inquest has heard testimony that aboriginal people face discrimination and stereotyping the minute they walk into an ER and are less likely to receive life-saving treatment.
"This inquest did not deal with the issues of systemic discrimination and assumption-making and dismissive attitudes towards the public that came out very clearly in this inquest," Zbogar said outside court. "The judge didn't think he had the capacity to deal with that issue in this process. He said it's not a public inquiry, so that's what we need."
The call for an inquiry was echoed by lawyers with Aboriginal Legal Services of Toronto, which has standing at the inquest, but also withdrew halfway through in frustration over the hearing's focus.
"Questions about what role discrimination played in Brian Sinclair's death have not been adequately addressed," Emily Hill, senior staff lawyer for the organization, said in a statement. "A different process is needed to examine how Brian Sinclair's death reflects the most extreme example of something aboriginal people experience on a regular basis."
Attorney General Andrew Swan said Thursday he wouldn't rule out a public inquiry, but he added the government will wait for the judge's report which will be "taken seriously."
Arlene Wilgosh, CEO of the Winnipeg Regional Health Authority, who was in court for the inquest's final day. She said a public inquiry isn't necessary.
Since Sinclair's death, the health authority has overhauled the emergency department so triage nurses can better monitor the waiting room and those waiting for care are more easily identifiable with wristbands. Cultural training for staff has also been retooled, she said.
"I think the resources that would be used for an inquiry could be better used to support front-line staff in the provision of care."
Bill Olson, lawyer for the health authority, didn't offer specific recommendations to the judge.
Many factors led to Sinclair's death, not least of which was the fact that he was never formally triaged, Olson said. While Sinclair spoke to a triage aide when he first arrived at the hospital, he was never seen by a triage nurse or registered.
"For the most part, major changes have been made," Olson said. "We believe such a tragedy could not recur."
The health authority is open to amending its cultural training to make it more frequent and thorough, he added.
"We look forward to receiving any recommendations you might have," Olson told the judge.
Garth Smorang, lawyer for the Manitoba Nurses Union, suggested Preston does not have the authority to rule Sinclair's death a homicide since a coroner has already called it "natural."
Instead, he recommended the judge address adequate nursing staff in emergency rooms, the availability of diagnostic equipment such as X-ray machines and increased use of electronic health charts.
Sandi Mowat, head of the nurses union, said what happened to Sinclair was a tragedy, not a homicide.
"No nurse would ever have wanted this to happen," she said outside court. "We're very hopeful that we're going to get recommendations to make sure nothing like this happens again."
The inquest concluded Thursday. Preston has six months to deliver his recommendations and said he will have a final report "ready as soon as I can manage it."