Kelly Ashton died after falling twice in long-term care. Her family seeks justice for what they allege is a wrongful death.
As seen in The Tyee by Moira Wyton, 25th January 2023.
Kelly Ashton was 62 when she died in a Prince George hospice on Dec. 1. Her official cause of death was natural causes, but her son Jason Keller and daughter Santaya Garnot are alleging their mother’s death was wrongful.
Ashton, a long-term care resident, fell and bumped her head twice on Nov. 9. But she was not seen in person by a doctor until her children insisted she go to the hospital on Nov. 11.
The siblings say her death was a result of negligence on behalf of Simon Fraser Lodge, a private long-term care facility contracted by Northern Health and run by Buron Healthcare Ltd. in Prince George.
“She had dementia, but otherwise she wasn’t unhealthy,” said Garnot in a December interview.
The siblings want to know why their mother wasn’t seen by a doctor in person or transferred to hospital earlier.
“When you have a loved one with dementia, every moment of their time with you is precious,” said Keller. “The lack of care our mother received at Simon Fraser Lodge robbed us of the time we had left together.”
“Our mother passed away and we want to know what happened.”
While a representative from Buron Healthcare, which operates Simon Fraser Lodge, declined to comment on the particulars of Ashton’s case, citing privacy concerns, she noted that they take all incidents seriously. Buron Healthcare’s vice-president of operations, Michele Thomson, wrote that Buron Healthcare is “always open to reviewing and updating policies and procedures as required.” She noted the lodge has protocols for preventing and dealing with falls in place.
Meanwhile the family’s pursuit of answers and accountability has been complicated by British Columbia’s wrongful death laws, which limit their options for legal recourse. In the case of wrongful deaths, families in B.C. can sue individuals and entities they believe are at fault on their loved one’s behalf.
The Wills, Estates and Succession Act establishes that right but limits the damages families can seek to economic costs only.
And the Family Compensation Act specifies those economic damages are limited to lost future income upon which dependents relied and any funeral and burial costs associated with the death.
The legislation does not allow families to sue for their or their loved ones’ pain and suffering or seek punitive damages if they allege gross negligence.
“What that basically says is that if you are not a breadwinner, with young children, your life is worthless,” said Michael-James Pennie, president of the BC Wrongful Death Law Reform Society. “That means that anyone who does not meet that discriminatory criteria has no legislative protection under the law.”
Two falls, then a rapid decline
Ashton was living with early-onset Alzheimer’s. She had two falls in a single day before she died last month.
On Nov. 9, she had been agitated and wandering, according to an investigation by the long-term care facility. Staff found her bruised and bleeding from a bump on her head around 4 a.m. in the common living room.
Ashton couldn’t get up on her own from the fall, but an assessment by a nurse found no concerns, according to an internal investigation summary reviewed by The Tyee. Staff reassured her son Keller she was alright when he came to check on her later in the morning of Nov. 9.
That afternoon, Ashton complained of head pain. She fell again in the early evening. Staff found her on her hands and knees in front of a yellow caution sign placed on the hallway floor around 6:20 p.m, the report said. There was a second large and bruising bump on her head.
Facility staff again found no concerns in a post-fall assessment, and when they consulted the doctor over the phone, he did not recommend she go to hospital. Staff assured Keller and his sister Garnot that their mother didn’t need further medical care and would be seen by the doctor when he was in next. Garnot agreed to the use of a restraint and a wheelchair to prevent future falls, a solution recommended over the phone by the doctor.
But by Nov. 11, Keller said Ashton was “out of it,” hunched over with her head tilted forward. She had not yet been seen by the doctor in person. Her children insisted she go to the hospital to be examined, and over the phone, the doctor authorized her transfer to hospital via ambulance.
“She had gone from walking, talking and eating to simply sleeping and shaking, clearly in pain,” Keller wrote in a December email to The Tyee.
Shortly after she was admitted to University Hospital of Northern British Columbia in Prince George, doctors diagnosed her with a concussion and two fractured vertebrae in her neck.
Ashton received a neck brace and was stabilized in hospital, but died just weeks later in hospice on Dec. 1.
‘It’s about accountability’
Advocates and families say the Family Compensation Act devalues the lives of those killed wrongfully and minimizes their families’ suffering, particularly for seniors, children and disabled people who are less likely to earn income.
“Yet children, seniors and disabled people are the groups that are a lot more susceptible to cases of being neglected,” said Pennie of the BC Wrongful Death Law Reform Society.
The society has advocated for families to be able to sue for broader and more significant damages if their loved ones die wrongfully, including seeking punitive damages and compensation for the pain and suffering of their loved ones and surviving family.
This would allow families who lose people without income, like Ashton, to seek meaningful compensation.
“It’s about accountability, not money,” said Pennie, whose father lived with early-onset Alzheimer’s and died after neglect in a long-term care facility that caused his foot to be amputated.
Learning that they have no legal avenue to sue for wrongful death because their mother did not support them financially has compounded the family’s grief, Garnot and Keller said.
“You feel like you’re talking about someone who scraped their knee, but you’re talking about a person dying,” said Garnot..
‘You don’t just give up’
Kelly Ashton was a fierce and confident woman who loved dancing and whom her three children and their friends affectionately called “Momma Bear.”
She began showing signs of early-onset Alzheimer’s dementia in 2017 and moved into Simon Fraser Lodge in early 2020 when she started to wander from her home in Prince George. As her illness progressed, Ashton became more and more aggressive towards staff. But she could still say “I love you” and enjoy listening to music and time with her family.
At the beginning of her time there, Keller and Garnot felt she was getting good care at the 130-bed private, for-profit facility. Staff were responsive to their questions and concerns.
But things changed, Keller and Garnot said, when Buron Healthcare made staffing changes in the summer of 2020. They say the units began to seem understaffed and a new care director was put in place.
The siblings noticed their mom was losing weight and her dentist, in two separate letters reviewed by The Tyee, warned poor dental care was causing serious dental pain and decay. Eventually this decay led to the removal of her teeth, so she could use dentures.
According to the November 2022 incident reports and investigation summaries reviewed by The Tyee, Ashton could be angry and aggressive towards staff. Keller and Garnot said the facility noted this made it difficult to care for her teeth and ensure she was eating enough.
The siblings and her dentist raised these concerns to staff on multiple occasions in emails reviewed by The Tyee, but say her care and condition didn’t seem to improve.
“If she’s angry or she’s not eating, you don’t just give up,” Keller said. “But it seemed they didn’t have enough staff to take the time to make sure she got fed and [had her teeth] brushed.”
Following a cut on her elbow that required stitches in September, Keller and Garnot felt she was sedated too heavily in addition to her anti-psychotic medications. A review of her medications by a psychiatrist in early November reached the same conclusion, and her medications were changed and adjusted to a lower dose.
The use of antipsychotic medications in long-term care has risen in B.C. since the onset of the COVID-19 pandemic to more than 26.5 per cent of residents without a diagnosis of psychosis. The pandemic stretched staff thin and left many residents isolated, angry and confused about why they could not see family or go outside, B.C. seniors advocate Isobel Mackenzie reported in 2020.
Studies show that the use of anti-psychotics, which are sedatives, can increase the risk of falls and fractures among older adults.
In 2018 Mackenzie’s office found seniors living in facilities operated privately rather than run by the health authority, such as the Simon Fraser Lodge where Ashton lived, are 34 per cent more likely to be hospitalized and 54 per cent more likely to die in hospital than their peers in health authority-run facilities.
Mackenzie has also warned the risks of “default” use of anti-psychotics to ensure compliance from residents can have serious health impacts, including falls, heart attacks and strokes.
Ashton’s two children suspect this was true for their mother — that the sedating medications she was prescribed made their mother more prone to falling. They say sufficient steps weren’t taken to protect her even after the first fall on Nov. 9.
Routine fall reduction, post-assessment protocols in place
The Tyee asked Buron Healthcare’s Thomson about each of the allegations made by Ashton’s children about her care.
Thomson declined to comment on Ashton’s case, citing privacy concerns, but said, “Simon Fraser Lodge has a falls reduction program which includes a post assessment performed by the nurse after a fall.”
Nurses are required to contact the attending physician, Thomson wrote, who then determines if the patient needs to go to hospital.
Long-term care facilities are required to report a number of incidents, including falls and unexpected illnesses resulting in hospitalization, to the relevant contracting health authority’s medical health officer, in this case Northern Health. Regional staff for Buron Healthcare also investigated Ashton’s situation on Nov. 14.
The report to Northern Health, internal investigation summary and Ashton’s care and hospital records were shared with Keller and Garnot by Northern Health and Buron Healthcare. The Tyee reviewed these documents in full.
The investigation summary prepared by Buron Healthcare staff on both falls makes several recommendations, including removing potential slipping and tripping hazards from the hallway and reviewing when wet floor signs are used in the special care unit where Ashton lived.
The report submitted to Northern Health also said Simon Fraser Lodge was reviewing the care plan with staff to appropriately respond to aggressive and agitated behaviour like Ashton’s.
Thomson did not answer directly when asked if the facility was implementing all recommendations made in its internal investigation summary.
She declined to comment further on the case or communications that had taken place with the family. A spokesperson for the BC Coroners Service, which investigates certain deaths including those that are sudden, unexpected or the result of negligence, confirmed to The Tyee Ashton’s death was not being investigated.
‘A burning sense of injustice’
B.C.’s wrongful death laws are unique in Canada, and recent advocacy from families who allege their loved ones died wrongfully have brought renewed attention to limited options for families to sue and seek accountability.
Other provinces allow civil lawsuits alleging wrongful death to seek compensation for pain and suffering or punitive damages up to a capped amount. Those caps range from around $60,000 to $90,000.
Pennie says the caps are too low, but at least the path is open for the court to recognize that person’s death as wrongful.
Other avenues, like complaining to the Patient Care Quality Office about the actions of a health-care provider, have a very limited scope and don’t offer compensation. Launching a legal challenge to the laws themselves on the basis of charter rights to life, liberty and security, is expensive and not suited to accountability for individual situations or changing future behaviour by institutions, said trial lawyer Don Renaud.
When would-be clients in similar situations to Keller and Garnot come to his Burnaby office for representation to begin a lawsuit, they are shocked the law doesn’t allow them to sue for significant damages or sue at all.
“There isn’t a legal avenue for them to have their day in court,” said Renaud, who volunteers with the BC Wrongful Death Reform Society. “We need wrongful death laws that allow people justice on an individual basis.”
Renaud and Pennie say allowing more significant damages in the deaths of people without income or dependents would incentivize improving care and deter other facilities from making the same mistakes.
“There is a certain amount of impunity in the current regime,” said Renaud.
BC Wrongful Death Law Reform Society president Pennie’s assessment of the matter is harsher. “It’s free to kill people,” he said.
In December 2020, then-attorney general David Eby said reforming the Family Compensation Act was a priority for his government after a young woman died from an undiagnosed staph infection following four emergency room visits in North Vancouver.
“We completely understand the grief and the anger and the need for a recognition of what happened to Natasha and to people who find themselves in a similar situation,” read a statement from the Ministry of Justice at the time. “That’s why we believe in a need for reform in this area.”
The Tyee asked the offices of Premier David Eby and Attorney General Niki Sharma whether wrongful death reform was still a priority.
In a written statement to The Tyee on Jan. 17, Sharma said work to update B.C.’s wrongful death legislation continues but did not say when changes would be introduced.
“Grieving families need better support when there is a wrongful death, that’s why we’re working to update the Family Compensation Act to give families an opportunity to address the injustice they have faced,” Sharma’s statement read. “My ministry continues to advance work on this important file.”
Pennie and Renaud say changes can’t come soon enough and must be informed by the experiences of grieving families.
“When you lose a loved one wrongfully, not only do you grieve but you have a burning sense of injustice,” said Renaud.
Keller and Garnot said they plan to file complaints with the Northern Health Patient Care Quality Office and the College of Physicians and Surgeons of British Columbia against the doctor who did not recommend Ashton go to hospital. They are mulling other paths to justice, such as a charter challenge, which would allege their mother’s right to life, liberty and security of person was violated by Simon Fraser Lodge and again by B.C.’s legislation.
At minimum, they want long-term care residents who fall to be required to be seen by a doctor immediately in person rather than being assessed over the phone.
“If it happened in a school or a daycare, they would have been sent to the hospital,” said Garnot. “How is it not required for the most vulnerable population?”
Since their mother died, the two siblings have sent more than 100 emails to elected officials, advocates and media in the hopes of stopping anyone else from dying like their mother did.
“Our mother was a fighter for us, and now we’re going to fight in her honour,” said Keller. “This is part of our healing.”
Post-Script Commentary from the BC Wrongful Death Law Reform Society
President Michael-James Pennie
The class of damages excluded by the Wills Estates and Succession Act and the Family Compensation Act are ‘non-pecuniary’ (non-economic) damages.
We propose that this would include loss of care, guidance, companionship, love, and affection when a family member is wrongfully killed. These are the classes of damages we see available in other provinces.
We propose that pain and suffering damages would be available if the deceased did not die within the first 24 hours and their suffering was prolonged before their eventual death (from either related, or unrelated causes). This is so that there is not a perverse incentive to prolong litigation in hopes the elderly Claimant dies before the conclusion of said litigation. The Quebec civil code for example has this clause.
Punitive and aggravated damages are another class of damages separate from ‘non-pecuniary’ damages that we are also calling for in cases of egregious wrongdoing.
While the other Western Provinces rely upon ‘caps’, we have proposed that we look to Ontario, where damages are assessed based on case law. The recent high watermark was set a year ago at $250k per surviving immediate family member in the event of the wrongful death of a child. We believe “caps” make people into bureaucratic meat charts. They’re totally demeaning, degrading, and unacceptable.
We also don’t want to see any other legislation bar the pursuit of wrongful death claims. For example the new ICBC No-Fault legislation prohibits wrongful death suits. Ontario for example has provisions of No-Fault, but they still allow for wrongful death actions.
Lastly, in Sharma’s mandate letter from Eby, there was not one single line item dedicated to modernizing BC’s wrongful death laws. I do not believe they are making any sort of commitment anywhere near in line with our Society’s demands that have been made by the families who have lived through this experience.