The province of Manitoba and Winnipeg's health authority are asking the court to throw out a lawsuit filed by the family of a homeless man who died during a 34-hour wait in a hospital emergency room.

Brian Sinclair, a 45-year-old double amputee, died of a treatable bladder infection in 2008 while he waited in the Winnipeg Health Sciences Centre's ER. His death was discovered when someone alerted a security guard.

Sinclair's family alleged his charter and privacy rights were violated by the defendants, leading to his death.

But lawyers for the Winnipeg Health Sciences Centre say Sinclair's rights ended when he died of a treatable bladder infection.

Sinclair's family say the lawsuit should go ahead because the case deals with broad social implications beyond their relative's death.

"It's upsetting when you hear that when someone dies in the hospital and it's the hospital's fault . . . that when they die that's it, you have no rights," relative Robert Sinclair said.

The health authority has already paid out $110,000 in damages to the family "to settle a portion of the lawsuit that dealt directly with the family's claim for loss of care, guidance and companionship for his wrongful death," according to a statement by the authority.

"The Winnipeg Regional Health Authority has consistently acknowledged the role it played in the death of Brian Sinclair," the authority said. "He was a patient who came to the Health Sciences Centre seeking help which the hospital failed to provide. His death was preventable.

"As soon as they were able to contact his next of kin, representatives of the hospital immediately apologized to them."

Vilko Zbogar, the Sinclairs' lawyer, said he was not going to speculate on why the health authority made the damages payment.

"The timing is interesting," he said to reporters Monday.

Part of the lawsuit against the authority has been dropped and government lawyers say the rest of the claims are groundless.

"Constitutional rights do not survive death," government lawyer Heather Leonoff said.

The government and health authority says the Charter of Rights and Freedoms does not allow relatives to pursue claims after their loved one's death.

Sinclair's family alleges Manitoba allowed the Winnipeg ER to operate even though it was a "public nuisance" and "injurious to public health."

The Sinclairs said their $1.6 million lawsuit is not about money, it's about fixing the system.

With files from The Canadian Press