By Andrew Bates | Telegraph-Journal
New Brunswick Premier Blaine Higgs said the province “strongly objects” to the inclusion of two nurses in a lawsuit from the family of a man who died in a Fredericton ER waiting room.
The lawsuit, filed in July, targets the Horizon Health Network as well as Danielle Othen and April Knowles, two nurses who were working at Dr. Everett Chalmers Regional Hospital July 12, 2022, when Donald Darrell Mesheau, 78, died after waiting for seven hours to see an ER doctor.
The lawsuit, filed by Mesheau’s sister Susan Mesheau on behalf of his estate and six other family members, alleges Horizon and the nurses failed to provide Mesheau “proper medical care and attention,” causing or contributing to his death through negligence.
In a statement issued Saturday, Higgs said that Mesheau’s death was a “tragedy,” and extended his condolences to the family “even years later.”
“However, our government strongly objects to the legal tactic of naming nurses personally in the lawsuit,” Higgs wrote in the statement, in which he said the government would introduce legislation to protect health-care professionals from lawsuits and that the government would pay all legal fees, including damages.
“I believe that front-line health-care providers – who serve patients in good faith and to the best of their abilities – should not have extra stress heaped upon them by being named in lawsuits,” Higgs said. “Even if costs are covered, it is still an attack on a nurse’s reputation, and is personally stressful.”
On Monday, Higgs, the Preogressive Conservative leader, told reporters the government is working on an “analysis” of the relevant legislation regarding “all aspects of health care.”
Reached by email Sunday, Susan Mesheau declined further comment. Brunswick News reached out by email to Othen and Knowles but did not receive a response.
New Brunswick Nursing Union president Paula Doucet said: “I applaud the fact that he’s thinking about it” for all health care workers.
“Every nurse is watching this very closely because this could be any nurse at any hospital across the province,” Doucet told Brunswick News, saying Mesheau’s death came from systemic issues.
In a separate statement published on the union’s website, Doucet said: “While we respect the right of the Mesheau family to litigation, we object to the decision to name the nurses.” She went on to pledge to “stand behind the two nurses named in the lawsuit and continue to fight for better conditions for health care professionals and their patients.”
Liberal Leader Susan Holt said the proposed legislation “is a good idea that we support,” saying that while the family “should be doing everything they can to get what they are due,” it’s the premier who should take responsibility.
But Green party Leader David Coon called Higgs’ statement a “hypocritical campaign commitment” ahead of an expected fall election in an interview Tuesday.
“So now he cares about health-care workers? This is just crocodile tears he’s shedding in an election he’s going to lose,” Coon said.
He said that that the nurses may be “understandably upset” to be named in the lawsuit, but that in the legal system, “all those who are ‘actors'” are named in the lawsuit so they can testify.
“The judge can determine where the liability lies,” he said. “That’s the way our law works … otherwise how are you going to get to the bottom of what happened?”
The legal system
Queen’s University law professor Erik Knutsen, a health law researcher, said Tuesday that doctors and nurses are regulated professionals like engineers and lawyers, and the “current legal system requires that they be named individually” when a person alleges they did something wrong.
“The statement put out by the premier’s office is not really understanding the basic mechanics of the lawsuit,” he said. “They’re getting the optics of it, and I understand the optics of it may appear troubling for some, but in the legal system, none of us have any issue with this.”
Knutsen said that during the “discovery” process, where each party in a lawsuit must provide relevant information to the other side, only defendants can be compelled to testify, which is often the only way to learn whether a person is a health authority employee or is a contractor, as some nurses are.
“The only way you can often get operation about what happened … is through a lawsuit,” he said. “The only way we trigger that right now is by naming individual people we want information from. If you just sue the health care authority, you’re only going to get their file.”
He said that if the nurse was an employee or was not acting “individually,” they may be dropped after discovery. He said that 97 per cent of the cases “are settled or go away,” and 90 per cent of them are settled after discovery.
He said there may be “unintended consequences” of the proposed legislation, saying getting all that information without having to present cases against each individual health care professional may actually save costs for the patient, even if the intention is to “shield from public view” the allegations against a professional.
“Are you representing to the province of New Brunswick that if they’re hurt in the hospital … they don’t have to name anybody but the province of New Brunswick?” he said. “Because that means that the province will have to pick up the tab if the person is hurt, and I’m not sure that’s what they’re intending.”
He said that the statement doesn’t reflect “the victim’s side of this,” saying that the legal system requires patients get a private lawyer and risk their own money “when they are harmed by the public medicare system.”
Knutsen said that like engineers and lawyers, doctors and nurses are professionals who are held to a certain standard due to the risks, respect and pay associated with their work.
“Premier Higgs was an engineer, he would have had professional responsibilities,” Knutsen said, referring to the premier’s degree in mechanical engineering from UNB in 1977.
When asked Monday if changes would target other non-medical public employees, Higgs said he “doesn’t know how far this might go.”
“I shouldn’t make any commitments or any on-the-fly comments about that at this stage,” he said. “We depend on people that are putting themselves in difficult situations… We’ll work to find ways to protect them so they can continue to do their jobs..”
Doucet said that unlike doctors, who are mostly incorporated as independent businesses, nurses are usually employees of the health authority.
“We’ve heard the anecdotal stories of, ‘I’m afraid to lose my licence,’ because they know that they aren’t delivering optimal care based on the fact that their employers can’t provide them with the optimal staffing levels,” Doucet said.
Knutsen said that being named in or losing a lawsuit would have no impact on a nurse’s licence, saying that licences are a regulatory issue and a complaint would have to be made with the college of nurses, which would stem from any conduct itself.
“I have the greatest sympathy for frontline healthcare workers working in tremendously challenging conditions. The solution to that is to fix the challenging conditions,” he said. “Not hiding peoples identities so that when … people get hurt or killed, we won’t know anything about it.”
He said the system does not require that they acted in good faith, or even that they did their best, but that they did what a “reasonable” trained nurse would have done in the circumstances.
“Were you like what the average nurse was in the circumstances?” he said. “That’s it. It’s a very low standard. And as long as you pass that … you are not negligent.”
He said that both proving that a nurse breached the standard of care and that a breach directly caused the harm to the patient are very difficult.
“These are incredibly hectic, wild circumstances, right?” he said. “The law knows that, and it’s flexible enough to give health care professionals the leeway to do their jobs.”
What we know
Othen and Knowles were among 11 witnesses who testified in April at a coroner’s inquest into Mesheau’s death. The coroner’s jury heard that Mesheau had called 911 on July 11, 2022, with concerns over “weakness” and had been waiting to see a doctor from his arrival at the hospital at 9:33 p.m. until he was found unresponsive at 4:28 a.m., and was pronounced dead shortly later.
He was assessed by Othen at Level 3 according to Canadian Trauma Acuity Scale guidelines, which call for a patient to be re-assessed every half hour, according to the lawsuit. Security footage shows that he was not interacted with from his last vitals check at 2:03 a.m. until a “code blue” was called at 4:33 a.m.
While the unit would usually be staffed by five people in the day and two at night, the only person working that night was Othen, who testified she had been working for 12 hours with no breaks, and that she had no time or opportunity to check the waiting room.
Knowles, a licensed practical nurse, testified that she was assigned to the psych unit but was assisting in the ER that night, and said Mesheau’s vitals had been “normal” for a man his age and that she’d performed another visual check at around 3:30 or 3:45.
The coroner’s jury found that Mesheau had died of natural causes and recommended that “all stakeholders should collaborate and show ownership in the resolution of the bed-blockage issue,” which Horizon also refers to as “patient flow” issues, where patients are forced to wait in acute care beds because there is no room to move them into other units of the hospital.
The inquest heard that 17 of the 26 acute care beds that night were “bed blocked,” with only two beds held open in case of an urgent case arriving by ambulance. A statement from Doucet noted that 52 people arrived at the ER that night, and the doctor on shift was also working alone.
Horizon’s own after-incident review included eight recommendations involving making sure the CTAS guidelines are followed, formalizing how patients are transferred from ambulances and facilitating transfer of non-urgent admissions, which Horizon clinical director Susan McCarron said were “basically” completed. The jury recommended that all be fully implemented and funded.
“The bottom line is that Horizon Health made mistakes,” Mesheau’s son Ryan Mesheau told reporters following the inquest. “Every medical professional seemed to fail my father the night of his death by not following their own standards and protocols.”
The lawsuit claims Horizon failed to meet established standards, failure to make “competent personnel (and) adequate facilities and equipment available” and failure “to properly monitor and care for Darrell Mesheau prior to his death.”
Othen and Knowles are alleged to have failed to investigate Mesheau’s symptoms and take steps to have him examined by a doctor, among other things, with the lawsuit alleging that Othen failed to document or inquire about his medical history while taking his chart information.
None of the lawsuit’s claims have been proven in court.
In his statement, Higgs said that the “inquiry did not find any instances of negligence on the part of these nurses. To suggest otherwise by naming them in the lawsuit is unacceptable.”
Coroners’ inquests do not include findings of legal responsibility, and the jury is not permitted to assign blame to individuals. Knutsen said inquests have a “very simple legislated task,” which is establishing the facts of a death.
“That’s the only job, they’re not there to find fault, they’re not there to find negligence,” Knutsen said. “It’s like saying they didn’t find any Tyrannosaurs – they didn’t find them either, because it’s not their job. They weren’t looking.”
While Doucet acknowledged the inquest couldn’t find negligence, she said that the recommendations were “more about systemic recommendations and changes” than indicating an isolated incident.
“We’re dealing with this at a much different level, we see this as, these nurses did the absolute best they could given the situation they’re in.”
Broken system
Mesheau’s death was followed by a public outcry and Higgs firing Horizon CEO Dr. John Dornan, plus the dismissal of then-health minister Dorothy Shephard from her cabinet post, and the dissolving of the boards of both the Horizon and Vitalite health networks. Fredericton police determined there was “no criminality” in January.
Dornan was awarded $2 million by a labour adjudicator for wrongful dismissal, with the province abandoning an appeal in April this year.
Horizon previously declined comment on the lawsuit, but on Saturday president Margaret Melanson issued a statement saying the health authority is “committed to continuously improving quality, safe care, and services to all patients.”
“We celebrate and support our health care workers every day and continually provide new initiatives to support our team during these challenging times within health care,” Melanson said.
Speaking Monday, Higgs told reporters “the inquiry’s already happened in that situation, and yes it was extremely unfortunate and recommendations were put forward and we implemented a lot of recommendations to mitigate any chances of that happening again.”
But Doucet said the hospital in Fredericton is “still struggling with staffing issues and vacancies … and overcrowding in their ER department,” and the whole province is struggling with a nursing shortage.
“The situation is not much better here in Fredericton, but many emergency departments around this province are suffering,” she said, saying “it takes time” to train up new nursing recruits.
Holt called Mesheau’s death a “tragic” situation, and that it’s the government’s responsibility to keep New Brunswickers safe and to protect their employees.
“We’ve been asking nurses to do more with less for too long. Under this government, our ERs have become understaffed, under resourced, and nurses are working in unsafe conditions,” she said. “We saw the premier react originally to that by firing Dr. Dornan as CEO of Horizon, and that hasn’t helped in any way.”
She also referenced the “code orange” at the DEC on the weekend, where Horizon said nine trauma patients were brought in on Saturday night “in a short period of time,” requiring ER staff to come in on their day off.
“Things haven’t turned around, if you look at what happened in the emergency room at the (Chalmers) this past weekend,” she said. “It has not got better in part because this premier refuses to recognizes and value the work of the nurses in New Brunswick,” including a lack of retention incentives and changes to work environments.
Holt said what she has heard from health-care professionals is the need to address systemic challenges “by working together as a team,” pointing to her party’s promise Monday to open at least 30 community care clinics to ensure ER doctors can focus on acute care clinics.
Coon said the Chalmers has taken some steps, “but the problem is the system is broken, so they don’t have the staffing they need to create a safe ER.” He said the short term solutions include freeing up acute beds, and the long-term solutions are recruiting and retention.
He said he had seen the impact stretching back to his time as a Fredericton MP during Brian Gallant’s Liberal government, and that in Nova Scotia, things had improved because health care had been made an issue during the last election campaign.
In April, Ryan Mesheau told reporters that the issues in health care are “much more about money,” calling it a “system nobody wants to fix.”
“The current government wants to ignore it, and ‘let’s just ride this out,'” he told Brunswick News after the verdict. “They don’t want to deal with it, and no one does. But it’s something that shouldn’t be ignored.
“If there was a government that’s willing to tackle this, take it on, that’s the government I would vote for.”
With files from Barbara Simpson
