Is Higgs's criticism of lawsuit naming nurses a legitimate gripe? Lawyer explains
There are legal and tactical reasons to name individuals in lawsuit, says law professor
When his students are unsure, Dalhousie law professor Jonathan Shapiro tells them it's always safer to overname when filing lawsuits.
That's because it's easier to drop names from a lawsuit than add them down the road when it might be too late. It's a normal practice in lawsuits against private companies, Shapiro said, but one that Premier Blaine Higgs is taking issue with in a case involving a regional health authority.
Higgs issued a statement over the weekend urging the family of a man who died in the Fredericton emergency department not to name individual nurses in their lawsuit against Horizon Health Network.
Darrell Mesheau, 78, spent about seven hours in the waiting room of the Dr. Everett Chalmers Regional Hospital ER before he was discovered slumped and motionless in a wheelchair by a licensed practical nurse around 4:30 a.m. on July 12, 2022. His sister, Susan Mesheau, is the executor of his estate and filed the notice of action this month.
The lawsuit names Danielle Othen, a registered nurse who triaged Mesheau, and April Knowles, a licensed practical nurse tasked with monitoring patients.
Higgs said there was already an inquiry into Mesheau's death, which "highlighted important changes that needed to be made."
"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."
When reached on the weekend, Susan Mesheau said the family had no further comment. So while the family's lawyer's strategy is not known, Shapiro said there are legal and strategic reasons to name individuals in a lawsuit.
Suing the government versus suing a private company
Shapiro, who's been a teaching fellow at the Schulich School of Law for more than 10 years and was previously a lawyer for the federal department of justice, pointed out that when someone sues the government, there's actually a statute that prevents them from naming individuals.
For example, if someone was suing an RCMP officer or a prison guard, you would just name the Crown as the defendant.
"When you're dealing with a private lawsuit, it's ordinary, normal in many circumstances, to name, for example, a company and its employees," Shapiro said.
While there's government overlay in the case of Mesheau, Shapiro said the family is not actually directly suing the government, but rather a company that is contracted by the government.
The early stages of a lawsuit
When a lawsuit is in its very early stages and a statement of defence has not yet been filed — like in the case of Mesheau's family — naming a person in a lawsuit and that person ultimately being held responsible are two very different things, Shapiro said.
"If I were the lawyer for the nurses, I'd be saying to them, you don't have that much to worry about here," Shapiro said.
He acknowledged it's very stressful to be named in a lawsuit, and said he understands Higgs's concern about causing that anxiety for health-care workers.
"We're in a health-care crisis across this country. It is very hard to keep and attract skilled labour, and nurses are amongst those. If nurses are afraid that when they're doing their legitimate jobs, they'll end up named personally in lawsuits, they might not want to stick around in the province," Shapiro said.
That's why he also tells his students that if they're going to name someone in a lawsuit, they should consider the repercussions for that person. Still, a lawyer may decide to name someone as a way to apply pressure to the case, and that's part of doing their job and representing their client in the best way possible.
Vicarious liability
Naming individuals in a lawsuit requires extra time and resources during the legal process, Shapiro said, which can end up being a waste if those names are dropped.
So why do it?
One reason is vicarious liability, which Shapiro said is the concept that employers are responsible for the actions of their employees.
If a company guarantees vicarious liability will apply, there's usually no reason to name individuals in a lawsuit, Shapiro said.
But if vicarious liability is not guaranteed, then it's in the best interest of the lawyer who's filing the lawsuit to name the individuals involved, in case the employer being sued decides to say in its defence that the employee is at fault, not them.
If that happens and a lawyer hasn't named that employee in the lawsuit, then it could be either difficult to add them to the lawsuit — requiring more time and resources — or it might not even be possible, due to statutes of limitations. The lawyer is then at risk of being sued by their client.
If the employer formally guarantees vicarious liability after the statement of claim has been filed, it's likely the individual names will be dropped from the lawsuit, Shapiro said.
In Mesheau's case, it's unclear whether vicarious liability is guaranteed. While it's true the provincial government will cover the legal fees of the nurses, as well as any legal punishment that results from the lawsuit, that's not a reason to not name the individuals in the lawsuit, Shapiro said.
Can Higgs ban naming health-care professionals?
In his weekend statement, Higgs said if he's re-elected, he'll introduce legislation that bans the naming of individual health-care workers in lawsuits.
Higgs can technically do this, Shapiro said, though he's not aware of any precedent for it, nor any other province that has introduced similar legislation.
He anticipates one major drawback to that kind of legislation, however — cases where vicarious liability does not apply, or cases where the action was so extreme that the limits of vicarious liability are exposed.
"One of the things about vicarious liability that's limited is that if the employee's behaviour is either not covered by their job description or wildly negligent, well outside of what an employer would expect their employee to do, then the employer's not responsible," Shapiro said.
"In that environment, you really do have to sue the individual."
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