Mother of Manitoba woman who died in failed ICU transfer suing province over 'preventable' death

The mother of a 31-year-old Manitoba woman who died while waiting to be transferred to an Ontario hospital in 2021 is suing all those involved in the decision to move her out of province in order to make roomfor more critically ill COVID-19 patients.

In a statement of claim filed in Manitoba Court of King's Bench onMarch7, Elaine Mousseau claims a sequence of bad planning and decisions and a lack of the necessary medical equipment and properly trained staff caused the death of her daughter,Krystal Mousseau.

On May 24, 2021, during the third wave of the COVID-19 pandemic in Mantioba, the decision was made to airlift Krystal, then in stable condition, from the Brandon Regional Health Centre, in that southwestern Manitoba city,toOttawa General Hospital.

Elaine Mousseau is suing the Government of ManitobaandShared Health, the provincial organizationthat oversees the delivery of health care in Manitoba.

Her lawsuit also names the Prairie Mountain Health Authority, which includes the city of Brandon, the Brandon Regional Health Centre, Keewatin Air, an unidentified ICU nurse and two unidentified Keewatin Air employees who were sent as a medical team to transfer Krystal using ground and air ambulance.

"The conduct of the government and Shared Health was careless, callous, [and] reckless with full knowledge that Krystal's death was entirely avoidable," the statement of claim says.

In an interview with CBC News, the family's lawyer, Brian Meronek, said he got access to Krystal's medical records and the province's critical incident report to understand what happened in her case.

'Litany of preventable errors': lawyer

"Some would say it's a perfect storm. I don't call it a perfect storm. I call it a litany of preventable errors," Meronek said.

"She was in stable condition in ICU and by moving her, you had enhanced the risk of some catastrophe happening. And it certainly happened by virtue of the mishandling of her when she left," he said.

"She wasn't being moved to improve her health. She was being moved for the benefit of others."

According to the lawsuit, Krystal, 31,was healthy, other than having asthma, when she went to a hospital in Ste. Rose du Lac about 150 kilometres northeast of Brandon in mid-May 2021 and was diagnosed with COVID-19. She required oxygen, so she was taken to the hospital in Brandon by ambulance.

As her condition worsened, she was sent to the intensive care unit and put on a ventilator. She was also givendrugs to induce a coma, according to the lawsuit.

The court document says Shared Health made arrangements for Keewatin Air to provide the aircraft, crew and medical staff to take her to Ottawa.

Elaine Mousseauhas previously saidshe objected to her daughter'stransfer and said she wanted to discuss with the family before giving her consent. She claims that consent was never given.

Her lawsuitsays Krystal was in stable condition when she was switched to a transport ventilator, but developed a rapid heart rate and started coughing. Attempts to get a blood pressure reading were unsuccessful.

"For about 75 minutes Krystal lay in the [Brandon Regional Health Centre] ICU in unrecognized, progressive shock," the court document says.

Then, as she was being taken to the airport in a ground ambulance, Krystal's condition deteriorated to the point that she was too unstable to move to the aircraft.

According to the statement of claim, her heart rate dropped and she went into cardiac arrest. She was taken back to the Brandon hospital, where she had another heart attack, went intoshock and sufferedmultisystem organ failure, the claim says.

She was pronounced dead just after 2 a.m. on May 25, according to the lawsuit.

"There were all sorts of problems related to her movement, bearing in mind that once when someone is in a critical condition, any movement can alter their status," Meronek said.

ICUs were at capacity

At the time of her death, Manitoba's intensive care units were at capacity, with at least 10 new COVID-19 patients requiring intensive care every day, Manitoba's chief medical examiner has previously said.

The province arranged for less-severely ill ICU patients to be moved to provinces that still had intensive carecapacity, althoughthose patients were unstable and likely to deteriorate quickly,Dr. John Younes said in a letter to Manitoba's Opposition NDP last March.

Fifty-seven Manitoba COVID-19 patients were sent out of the province for care. Twelve of them died.

At the time of Krystal's death, Dr. Rob Grierson, chief medical officer of Shared Health's Emergency Response Services, told CBC News the rapid deterioration and death of COVID-19 patients requiring critical care was not uncommon and often cannot be predicted, whether in the intensive care unit or during transport.

"Moving these patients is not something that I personally take lightly. And I realize that there's a family and a life, obviously, that's impacted by every one of these moves," Grierson said in May 2021.

"This was a tragic event and my heart goes out to everybody involved."

Her death also followed the privatization of air ambulance services in 2019.Meronekclaims that inKrystal's case, that led to a breach of "all the requirements for the safe conduct of critically ill patients."

Transportation for patients who don't need critical care was contracted out to private air companies,including Keewatin, but that company wasnot licensed to provide critical care transportation in Manitoba, the lawsuit alleges.

Itclaims all the named parties failed in their duty of care and are responsible for "causing or contributing to Krystal's wrongful death which was otherwise preventable."

Mousseau has filed the lawsuit on behalf of Krystal's daughters, aged 14 and 15, both of whom live with her on the Ebb and Flow First Nation in western Manitoba, as well as Krystal's two brothers, two sisters and a nephew.

She is asking for a declaration against the province and Shared Health that Krystal's right to life and security was violated under the Canadian Charter of Rights.

She also wants aggravated damages as a residential school survivor whose family has suffered intergenerational impacts, Krystal's funeral costs, and loss of income support.

"It's a lingering tragedy that they are still trying to go through and they want to make sure that this doesn't happen to any other families," Meronek said, adding when the chief medical officer refused to hold an inquestinto Mousseau's death, her family felt they had no other choice but to sue.

'Difficult decisions': premier

The case came up in question period at the Manitoba Legislature Thursday afternoon,when NDP Leader Wab Kinewaccused the province of employing"a [medical transport] company that did not have properly trained staff anddid not have the right equipment to care for an ICU patient."

"They did not even have a licence to transport critically ill patients," Kinew said, echoing theallegation made in the lawsuit.

"I thinkManitobanswould also like to know what due diligence, if any, was conducted on this company [KeewatinAir] prior to them being contracted to move these ICU patients."

Premier Heather Stefanson, who was health minister at the time of Mousseau's death,replied that the case has already been investigated as a critical incident and by the chief medical examiner, who found no grounds for an inquest.

"Physicians were having to make difficult decisions" during the pandemic, she said.

"We know that those decisions, of course, were made by physicians, not by politicians,"she said during question period,adding her Progressive Conservativegovernment has increased the number of ICU beds in Manitoba since the pandemic.

She also said that since the matter is now before the courts, "I think it would be inappropriate to comment further on this until that process takes its course."

While the lawsuit has been filed in court, Meronek said the parties have not yet been served.

CBC News reached out to all of them.

An emailed statementfrom a spokesperson for Shared Health and Prairie Mountain Health, and another froma Manitoba Justice spokesperson, both offered sympathy to Mousseau's family but also declined comment as the case isbefore the courts.