Is Higgs's criticism of lawsuit naming nurses a legitimate gripe? Lawyer explains

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.

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.

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.