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‘A burning sense of injustice’: A wrongful death

Kelly Ashton died after falling twice in long-term care. Her family seeks justice for what they allege is a wrongful death.
Kelly Ashton was 62 and living with early-onset dementia when she died. She is loved and missed by her three children, including Jason Keller, with Ashton at left, and Santaya Garnot, with Ashton in an earlier photo at right.

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 the  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.”