03/18/2013 02:03 EDT | Updated 05/18/2013 05:12 EDT

Family of man who died in Winnipeg ER appeals lawsuit ruling

WINNIPEG - The family of a Winnipeg man who died in a hospital emergency room is appealing a court decision that reduced the scope of their lawsuit.

Relatives of Brian Sinclair are appealing a Court of Queen's bench ruling last year that dismissed a section of their statement of claim which said Sinclair's charter rights had been violated.

A hearing is set for Wednesday.

Sinclair, a 45-year-old double amputee, died after waiting for 34 hours in the emergency room of the Health Sciences Centre.

Sinclair's family filed the lawsuit, saying they wanted someone held accountable for what went wrong.

An inquest into the death is expected later this year.

Sinclair was in a wheelchair when he went to the emergency department in September 2008. Hospital security tape showed Sinclair went to the triage desk and spoke to an aide before wheeling himself into the waiting room. That appears to have been his only interaction with staff.

Some 34 hours later, another person in the waiting room approached a security guard to say Sinclair appeared to be dead. Efforts to revive him were unsuccessful. Manitoba's chief medical examiner said Sinclair's death could have been prevented if his blocked catheter had been changed and his infection treated.

Police and the Crown attorneys office investigated the death as to whether charges of criminal negligence or failing to provide the necessities of life might have applied. But they decided no charges were warranted.

The Winnipeg Regional Health Authority has paid out $110,000 in damages to the Sinclair family for loss of care, guidance and companionship.

The family's lawyers had also argued the health authority and the province violated Sinclair's charter rights and allowed the ER to operate even though it constituted a public nuisance to vulnerable, aboriginal patients. But a Court of Queen's Bench justice ruled there was no evidence to back up those claims and dismissed them.

The court, however, did rule that the family could sue the defendants for out-of pocket costs for participating in the upcoming inquest.