Family of Indigenous woman who died in Ontario hospital after 2 ER visits seeks homicide ruling at inquest

scots heather Winterstein’s fellowship is urging an inquest panel to learn her 2021 sepsis dying in a St. Catharines, Ont., hospital was a homicide, due to biases and errors made in her assessment and treatment. 

Winterstein, 24, who was a member of the Cayuga Nation with ties to Six Nations of the Grand River, was taken by ambulance to the hospital two days in a row after suffering a fall. She was sent home on Dec. 9 and returned to the emergency department the next day, but collapsed after a 2½-hour wait and later died despite efforts to save her.

Rachael Gardner, lawyer for the family, told the inquest Monday that "actions and omissions" while Winterstein was seeking medical help "amounted to homicide.”

Gardner and others gave final arguments to jurors on Day 14 of the inquest.

A coroner's jury is tasked with answering questions including medical causes of death and how someone died — by natural causes, accident, homicide, suicide or undetermined. Jurors may also make recommendations based on the evidence presented to them, but they’re prohibited from making any finding of legal responsibility or laying blame on anyone. 

A homicide ruling at an inquest is different from a homicide ruling in a trial, when someone may be found criminally responsible for a death, explained Gardner.

An inquest jury can make a homicide determination if there have been "non-accidental" actions resulting in injury that causes or substantially contributes to death.

That was the case with Winterstein, the family’s lawyer told the hearing.

Winterstein had severe pain when she first went to the St. Catharines hospital (now known as the Marotta Family Hospital), but the emergency department physician — Dr. Emad Nour — ruled out infection because she didn't have a fever, the inquest heard previously.

Nour also opted against doing bloodwork and attributed her symptoms to "social issues." He mentioned her history of substance use and an anxiety disorder in his doctor's notes, and she was sent home with a bus ticket and a Tylenol with instructions to return if her symptoms worsened, according to other evidence.

The inquiry heard earlier testimony from an infectious disease specialist, Dr. Dominik Mertz, who said some people with sepsis don't have fevers. 

He said bloodwork could have revealed inflammation and possibly organ dysfunction that would have pointed to an infection, which likely would have resulted in Winterstein being put on antibiotics that could have potentially saved her life.

"Had a proper assessment and treatment been conducted, Heather would have had her best chances for survival," Gardner contended.

She said the same could be said about what happened on Dec. 10, when Winterstein returned to the hospital and was sent to the emergency department waiting room. Video evidence played at Friday's hearing showed her struggling to remain comfortable in her wheelchair, lying on the floor at times while waiting to see a doctor before finally collapsing.

According to hospital rules, Winterstein was supposed to be reassessed every 15 minutes in the emergency department to see if her condition was deteriorating. The inquest was told she was never reassessed. The triage nurse in the emergency unit that day said the hospital was short of triage nurses while dealing with a crushing patient load at a high point in the COVID-19 pandemic.

"Heather was not passive in the face of her illness," said Gardner. "She got herself twice to the hospital, the place that has the tools and people to heal her." 

Gardner noted Dr. Suzanne Shoush, an expert in biases in health care, testified earlier in the inquest that anti-Indigenous racism and bias is baked into the health-care system, and biases related to housing instability, substance abuse and mental health issues also impact patient care. 

"Heather was a patient with several features that put her at risk of bias and stereotypes: she was an Indigenous woman, she had a substance use disorder, she was perceived to be homeless, she has a mental health history," said Gardner. 

Aidan Johnson, lawyer for the Niagara Regional Native Centre, said the centre agrees there should be a homicide finding, arguing "systemic racism" played a big part in her death. 

"Bias is a significant part of what systemic racism is and why it is fatal."

Dr. David Eden, the inquest's presiding officer, told jurors they will be given a summary of a post-mortem report on Winterstein. A portion of a document with the title "pathology narrative” was shown during the hearing on Monday, noting an autopsy was conducted on Dec. 13, 2021.

It said the pathologist concluded her death was from sepsis with a bacterial infection of the blood, but an examination of the skin and internal organs did not identify a source of the infection.

Winterstein reportedly fell down a flight of stairs while carrying bags two days before she died. The autopsy revealed no signs of any traumatic injury that could have caused or contributed to her death, the document said.

During the autopsy, blood samples looking for narcotics found substances, but none were at levels that could have caused death or "acute toxicity," the excerpt said. Those substances included fentanyl (described as a powerful opiate), flualprazolam ("an illicit sedative") and benzoylecgonine (a breakdown product of cocaine and methamphetamine).

A homicide finding at an inquest isn’t as common as other cause-of-death determinations by juries, but they do happen.

For example, in 2023, the 2016 death of Soleiman Faqiri at the Central East Correctional Centre in Lindsay, Ont., was deemed a homicide and the jury made dozens of recommendations. Faqiri had been in the throes of a mental health crisis when he died at the hands of guards.

In Thunder Bay last year, an inquest jury determined the 2012 death of Sherman Kirby Quisses in the wake of an altercation with another inmate was also a homicide, after a murder charge was dropped.

Rea said the family could turn to police to ask for an investigation, but the Office of the Chief Coroner would not have a role in that. 

“If there are any further police investigations after an inquest, the OCC would have no involvement.”

Rea said that in his charge to the jury on Tuesday, Eden will provide the definition of homicide for their deliberations.

At the inquest, Eden said while jurors must follow the law, how they interpret the testimony is up to them. The submissions of the different lawyers is not evidence, he added.

"And if the recollection of any counsel or myself is different from what your recollection of the evidence is, it is always your recollection and your interpretation of the evidence that you'll go with.”

The inquest, which began March 30, heard from nearly two dozen witnesses.

Reporter/editor

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