SYDNEY, N.S. — A second health-care worker at the Cape Breton Regional Hospital has been found not guilty in connection with the 2018 death of a 79-year-old man.
Valerie Marie MacGillivary, 49, a licensed practical nurse, was charged with using a forged document — check sheets and nursing flow sheets — as if genuine.
Earlier this month, registered nurse Tammy Carrigan-Warner, 43, of Sydney River, was also found not guilty on the same charge.
Both were charged in connection with the Feb. 23, 2018, death of 79-year-old Colin Francis MacDonald of Grand Mira South. Both were charged separately and both were called to testify, by the Crown, at the other’s provincial court trials. Both accused also took the witness stand in their own defence.
MacDonald was a patient on Unit 4C at the regional hospital. The unit is deemed a secure site and is for patients who have suffered strokes and those with mental health concerns. MacDonald was diagnosed with dementia and was a patient on the unit for three months while awaiting a transfer to a long-term care facility.
Hospital security video played during both trials shows MacDonald exiting the back door of the hospital at around 12:35 a.m. He had left the unit through alarmed fire doors that were to sound when opened. No alarm sounded when MacDonald pushed his way through.
He was found at about 4 a.m. curled up on a foot bridge connecting parking lots. The cause of death was determined to be hypothermia.
MacDonald was MacGillivary’s patient on the night he walked away and the notes she entered on the patient chart that night indicate MacDonald was in his bed.
“The offence as charged requires that the accused knowingly used a false document with the intent that it be acted upon as genuine to the prejudice of someone else,” said Judge Diane McGrath, in a decision released Tuesday.
“Based on the totality of the evidence before this court, I am unable to conclude that Valerie Marie MacGillivary either failed to perform the bed checks as documented or falsely documented that Mr. MacDonald was in his bed when she knew he was not.”
MacGillivary’s notes presented during the trial indicated she checked on her patient at 1 a.m., 2 a.m., and 3 a.m. recording that he was in his bed. A note by Carrigan-Warner at 3:15 a.m. also indicated MacDonald was in his bed. She had checked on MacDonald after bringing a glass of water to another patient in the room. She recorded that MacDonald was sleeping and had his personal blanket pulled up to his nose. A student nurse on the unit that morning testified she entered MacDonald’s room between 3 a.m. and 3:30 a.m. and did not see a blanket on the floor which was shown in pictures presented by the Crown.
"She always maintained her innocence and this decision supports that." — Defence lawyer Tony Mozvik
Carrigan-Warner testified the colourful blanket was on the floor when she checked MacDonald’s room after he had been found at 4 a.m.
“This lends support to the assertion that someone was in Mr. MacDonald’s bed prior to 4 a.m. and they likely were there, at the very least, between 3 a.m. and 3:30 a.m.,” said the judge.
MacGillivary testified her entries were made prior to the discovery that MacDonald was missing.
Crown prosecutors Mark Gouthro and Rochelle Palmer argued that MacGillivary, of Glace Bay, did not make any bed checks on MacDonald and filed false notes to cover up.
Defence lawyer Tony Mozvik argued his client did not mislead anyone and that her notes reflected what she did see.
Testimony during both trials also indicated that MacDonald and another patient, who recently transferred to the unit, were known to roam the unit and be found in other rooms.
“Given the existence of a wandering patient or patients together with the questions raised by the issue surrounding the blanket from Mr. MacDonald’s bed, I must conclude that when coupled with the testimony of Ms. MacGillivary that she saw an individual who she believed to be Mr. MacDonald in his bed when she performed her nightly bed checks, I am left with a reasonable doubt as to her guilt.”
In commenting on the decision, defence lawyer Tony Mozvik said his client was obviously pleased with the outcome.
“She always maintained her innocence and this decision supports that,” he said.
Like Carrigan-Warner, MacGillivary, who had worked at the hospital for 18 years and had no infractions on her work record, was fired from her job days after the incident.
“She now wants to get her life back having lost the last two years,” said Mozvik, adding there is an outstanding grievance with the provincial health authority that needs to be addressed.
In her decision, McGrath also commented on the testimony from members of the hospital administration concerning their internal investigation into the incident.
“To say that this investigation, as relayed to the court, was less than thorough is an understatement.”
Gouthro and Palmer said Tuesday they will review the decision to see if an appeal is warranted.
