10/17/2011 12:58 EDT | Updated 12/17/2011 05:12 EST

Brian Sinclair Death: Family Of Homeless Man Who Perished Waiting In ER Blames Manitoba Government

Maurice Bruneau/Handout

WINNIPEG - The family of a homeless man who died waiting in a hospital ER says the Manitoba government is partly to blame because it allowed the emergency department to operate knowing it was dangerous.

Brian Sinclair's relatives allege in amended court documents that the province allowed the ER to operate even though it constituted a "public nuisance" and was "injurious to public health."

The claims are part of a lawsuit against the Winnipeg Regional Health Authority, the government of Manitoba and 13 other people filed last year.

Sinclair — a 45-year-old double amputee — died of a preventable bladder infection three years ago during a 34-hour wait at Winnipeg's Health Sciences Centre.

Security tape showed Sinclair went to the triage desk and spoke to an aide before wheeling himself into the waiting room. Some 33 hours later, someone in the waiting room approached a security guard saying they believed Sinclair was dead.

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

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

The Manitoba government knew the emergency room didn't meet the needs of "vulnerable aboriginal persons" but failed "to take proper steps to abate the risk," the amended statement of claim alleges.

"It was reasonably foreseeable that the government of Manitoba's actions or inactions could imperil the health of vulnerable members of the public seeking emergency health care, potentially fatally so," the statement says.

The province has not filed a statement of defence and none of the allegations has been proven in court.

Vilko Zbogar, the Sinclair family's lawyer, said he believes this is the first time a Canadian court will be asked to consider whether a government’s health-care management could constitute what the claim alleges is a "public nuisance." Normally such a legal term would be used in cases where the province neglected to remove rocks from a roadway or didn't maintain proper signage, he explained.

"We think clearly the law of public nuisance applies here and ... much more accurately describes the wrongdoing that's alleged against the government," Zbogar said.

"The underlying allegations haven't changed."

The Sinclair family is patiently waiting for the truth to come out, he added.

"The family's objective has never wavered. Immediately after the death of Brian Sinclair, they said we don't want Brian Sinclair's death to be in vain.

"They hope that this will motivate the government to fix the kinds of problems that they should have fixed even before Brian Sinclair's death."

Manitoba Health spokeswoman Naline Rampersad said it would be inappropriate to comment on the lawsuit since it is before the courts.