Wrongful death lawsuit settled in case of Nunavut's Baby Makibi

A settlement has been reached in the wrongful death lawsuit against the government of Nunavut and a former nurse in connection with the death of a three-month-old boy in Cape Dorset.

The settlement was approved by Justice P.C. Suche in an order filed with the Nunavut Court of Justice on Dec. 17, 2018.

The wrongful death lawsuit, filed in July 2014, claimed medical negligence against the government of Nunavut, the Cape Dorset Health Centre, nurse Deborah McKeown and another unnamed nurse in relation to the death of young Makibi Olayuk Timilak.

The settlement ends a legal battle that spanned four years, which the government tried, unsuccessfully, to have dismissed. In 2018 the government also filed a motion to recoup legal fees from Makibi's parents.

Hours before the baby's death in 2012, his mother, Neevee Akesuk, said she phoned the local health centre where nurse McKeown was on call. The mother said her son had difficulty breathing and asked if she could bring him in. Akesuk said McKeown told her to bathe the child and put him to bed.

Government policies require nurses to assess all infants presenting symptoms in person.

Parents signed non-disclosure agreement

Suche ordered the terms and details of the settlement sealed.

As part of the settlement, Makibi's parents had to sign a standard non-disclosure agreement, their lawyer Anne Crawford said.

"Consistent with the terms of the settlement, we are not disclosing any terms, but can confirm a settlement has been reached," Crawford said from her Iqaluit office.

Suche's order included $35,000 to be paid in trust to the parents' lawyer. This is standard practice for money transferred to plaintiffs in such cases, but it is unclear if this is the whole amount or what legal costs the family incurred since July 2014.

We are not disclosing any terms, but can confirm a settlement has been reached.- Anne Crawford, lawyer

Paul Harte, a veteran medical malpractice lawyer in Toronto, said medical negligence cases pose a serious "access to justice" issue across the country.

Such cases are generally taken on by lawyers on contingency, meaning they often don't get paid until a settlement is reached.

"Even though the loss of a child is perhaps the most devastating experience a parent can go through, Canadian courts award relatively little in damages," Harte said.

"These damages can often be less than the costs of the lawsuit. This creates a serious access to justice issue. Individuals cannot afford to take these cases to court, and lawyers working on a contingency basis cannot afford to take them on."

Nurse no longer licensed in Nunavut

Nunavut's coroner initially ruled that the baby's death was caused by sudden infant death syndrome (SIDS) — a catch-all for unexplained infant deaths where all known causes have been ruled out.

A pathologist later said that Makibi died of a treatable viral infection in both lungs, though the pathologist later changed his conclusion to SIDS. In November 2016, the jury in the coroner's inquest ruled the death "undetermined."

In January 2018, the parents said they felt blamed by government officials for the death and suspected a cover-up.

"Makibi didn't die of SIDS. The autopsy showed his lungs weighed double what they should have, because of congestion. He couldn't breathe," Akesuk said at the time.

"I want my baby boy to have justice."

In October 2014, a CBC investigation revealed that there had been several complaints against nurse McKeown.

After Makibi's death, she was promoted to head nurse in Cape Dorset.

The Nunavut government subsequently apologized to the baby's parents, saying "no family should have to go through this."

McKeown is no longer licensed to practice in the territory, according to the Registered Nursing Association of the Northwest Territories and Nunavut's website.