Appeals : Unconfirmed Referee Decisions : #31 - January 7, 2002
IN THE MATTER OF A REFERENCE
PURSUANT TO THE PROVISIONS OF THE
TRANSFUSED HCV PLAN ESTABLISHED BY VIRTUE OF
THE HEPATITIS C, JANUARY 1, 1986 - JULY 1, 1990
CLASS ACTIONS SETTLEMENT
| Claim Number: Province of Alleged Infection: Province of Residence: Claimant's Representative: Fund Counsel Representing Administrator: Referee: Date of Decision: |
1400386
Saskatchewan Saskatchewan Self Carolyn J. Horkins Daniel Shapiro, Q.C. January 7, 2002 |
By letter dated March 19, 2001, the Administrator denied the Claim on the basis that, having carefully reviewed the material provided in support of the claim, the Claimant had not provided sufficient evidence to support his claim that he had received blood during the period from January 1, 1986 - July 1, 1990 ("the Class Period").
By way of Notice of Appeal dated March 25, 2001, the Claimant requested that a Referee review the denial of his claim by the Administrator. In paragraph 4 of his Notice of Appeal, the Claimant stated that he wished to review the Administrator's decision, for numerous and lengthy reasons. In essence, however, these reasons may be distilled to the Claimant's central position, whereby he maintains that he received "Transfused Blood Products", within the meaning of the Plan, while hospitalized at the Plains Health Centre in Regina, Saskatchewan, at some point between November 7-10, 1989 and possibly also on November13, 1989.
The Claimant checked off the box in paragraph 5 of the Notice of Appeal that certified that he had provided all necessary documents upon which he relies for his claim to the Administrator and does not intend to file any further documents with the Administrator, "unless released to me and my lawyer. I cannot provide all donors or proper donor numbers unless they have been released to me and my lawyer and evidence shows they have not provided all numbers in their traceback." The Claimant further checked off the box in paragraph 6 of the Notice of Appeal, which provides space for a Claimant to indicate that he wished to have witnesses testify before the Referee and indicated in paragraph 7 of the Notice of Appeal that he requested an in-person hearing.
At the request of the Referee, each party provided advance written submissions. Fund Counsel's written submissions, dated August 17, 2001, set out the position of the Administrator. Although the Administrator concedes that the Claimant had undergone two operations at the Plains Health Centre in November 1989 (within the Class Period), and while the records indicate that blood products were cross-matched and set aside for the first of these operations, those blood products were never transfused to the Claimant. Fund Counsel went on to submit that this was confirmed by way of a traceback request and further that the Regina Health District (owner/operator of the Plains Health Centre) had done a disposition search and reported that the two units of packed cells that had been cross-matched and reserved and set aside for the Claimant were instead transfused on November 20th and 21st of 1989 to another patient, the identity of which must remain confidential.
The Claims Center file, consisting of 164 pages, was entered as Exhibit 1 at the hearing.1 In the Claimant's General Claimant Information Form (TRAN 1) dated August 9, 2000,2 the Claimant stated that he had received blood transfusions "once maybe twice" in Canada in his lifetime, both times during the class period. In his accompanying Declaration (TRAN 3) dated August 14, 20003 , the Claimant stated that to the best of his knowledge, information and belief, he had resided in Saskatchewan during the Class Period, more specifically on November 9, 1989. The Claimant further declared it to be "true" that to the best of his knowledge, information and belief, he "was not infected with Hepatitis Non-A Non-B or the Hepatitis C virus prior to January 1, 19864 . In Box 4 on TRAN 3, the Claimant checked off the "false" box and added in the word "Absolutely" beside the declaration that he "has never at any time used non-prescription intravenous drugs." [In testimony, the Claimant indicated that he was confused by the wording of box 4 and intended to make it clear that he had in fact never used non-prescription intravenous drugs.]5 When the Claimant filled out a revised TRAN 3 on February 8, 20016, he checked off "true" on Box 4 of the Declaration.
Exhibit 2 is a letter dated November 6, 1998 from the Canadian Blood Services (CBS) to the Claimant dated November 6, 1998, in response to the Claimant's request for a traceback, together with traceback Investigation Notes, dated August 15-21, 2000 and accompanying Reports of Transfusion-Related Infection, dated November 11, 1998, with respect to the Pasqua Hospital8 and the Plains Health Centre. The latter record states:
"This patient was not transfused at the Plains Health Centre in November, 1989. The units were cancelled after the surgery."
The traceback Investigation Notes indicate that the CBS reported that there were two units of blood in the logbook that were cross-matched for the Claimant, shown as numbers 45…60 and 13..59. They were cancelled post-op and then transfused to a different patient on November 20 and 21 (1989).
Dr. S., now deceased, provided a letter dated June 28, 1999, stating that the Claimant "received a blood transfusion in 1989 at the Plains Hospital in Regina, Saskatchewan and serial testing in the last four years has been positive for Hepatitis C." In his testimony, the Claimant acknowledged that Dr. S. obtained the information with respect to transfusion from the Claimant. However, he was also of the understanding that Dr. S. had made some calls on his own to the Plains Health Centre in that regard, presumably to obtain confirmation. The Claimant was therefore unable to say whether someone else may have also provided information to Dr. S. about a transfusion. As to Dr. G.'s report, at TRAN 2, the Claimant was not sure if Dr. G obtained the information about the transfusion from Dr. S. or from the Claimant.
The Claimant is of the view that the Plains Health Centre has been less than forthcoming in terms of providing co-operation and documentation that he had requested. He was, at least prior to hearing the testimony of Carol Miller, of the firm view that four units of blood had been ordered but only two were on record, leaving two units unaccounted for, one or both of which presumably led to his infection with the Hepatitis C virus. He also felt that there were many contradictions in what various physicians had told him. He recalled that his doctor advised him that he was anemic prior to the surgery and therefore in need of blood products.
With respect to his prior medical history, the Claimant testified that he had surgery in 1969 at the Grey Nun's Hospital in Regina, which involved having his ankle pinned. He had a further operation in 1977 as a result of a serious knee injuries sustained after leaving a bar, when a car drove over him in a parking lot. He was not sure if the surgery in that regard took place in Weyburn or in Regina. He received general anaesthetic at the time and was therefore not sure about receiving blood products. Finally, he had gall bladder surgery in 1995 or 1996 in Prince Albert, Saskatchewan.
The Claimant testified that he had been an accomplished professional touring musician, that he has never been an intravenous drug user and that he drank occasionally but is not an alcoholic. He was very upset with certain reports that suggested that he was a drug abuser.
As to the surgical procedures during which the Claimant believes he was transfused with blood products, he had been admitted to the Plains Health Centre for investigation of myasthenia gravis9 . Investigations showed a thymic abnormality as a result of which it was recommended by a surgeon, Dr. F., that the Claimant undergo a median sternotomy10 and thymectomy11 on November 8, 1989. Prior to the surgery, the Claimant recalled Dr. F. telling him about anemia and slow blood coagulation, saying that he thought the Claimant should receive packed cells, as Dr. F. did not want to take any chances on bleeding. The surgeon told him that his thymus was enlarged and the safest way to deal with it was to "yard it out", that it was easier than tonsils and that the surgeon had performed hundreds of these procedures. The Claimant asked to see x-rays of the thymus but was not shown them.
The Claimant testified that he recalled that on November 7, 1989, a big nurse came into his room and brought blood, in advance of the surgery. He described seeing two large bags of blood, close to or roughly 1 foot square in size, the first of which he received before his operation and the second of which he recalls seeing while in the operating room. He did not agree to receive blood until he spoke to the surgeon, as he was worried about contracting HIV from blood, but the surgeon assured him that the blood would be safe. He also recalls having seen blood in the operating room, in the same bag format as previously described, before he lost consciousness. He recalls waking up in the operating room and Dr. F. saying that he did not need all the blood and that they only ended up needing 2 bags. He believes that he may have seen blood in the recovery room, although he was not thinking clearly at that time due to the effects of morphine. His sternum had been wired shut in the surgery and the Claimant was advised not to cough or to hold a pillow over his chest if he had to cough, in order to prevent these sternal wires from breaking.
Unfortunately, on November 13, 1989, the Claimant inhaled some toast and as a result experienced a serious coughing fit. He believes that at that time, the doctors "reefed on" his chest, as a result of which the sternum wires were broken, and it was determined that he would have to undergo surgery again, this time to repair the sternum wires.
The second operation took place on November 13, 1999. This time the Claimant was taken to a different operating room and he "kind of thinks" he saw blood in the ward afterwards, but was not at all sure about any blood involvement in the second operation, as morphine was again required.
The Claimant stated that he needed Demerol for many years after these operations to control pain. He tried to enroll in a methadone program to attempt to "get off the Demerol", but the doctor in charge of the program would not treat him unless he admitted that he was an I.V. drug user, which he refused to do.
The Claimant moved to Manitoba in 1990 and was working 12-16 hour days logging. He also built a ranch. However, soon he could not even work 5-6 hour days as he was encountering bad fatigue and burning pain in the side, by the liver. In 1995 or 1996, he went in for HIV testing, after he learned that HIV could be contracted by means of heterosexual relations, although he had not been with lots of women. The doctor conducted Hepatitis C testing at the same time and confirmed that the Claimant was infected with the virus.
The Claimant had discussions with Dr. Alport, Medical
Officer, Regina Centre of CBS, one of which was recorded
on tape that was played during the Reference hearing.
These discussions caused the Claimant to conclude
that Dr. Alport was involved in attempting to cover-up
the transfusion(s).
However, regrettably for the Claimant, he was unable to provide the proof required by Article 3.01 because he could not establish that he received a transfusion during the Class Period. The provisions of the Settlement Agreement and Plan, as specified by the Honourable Mr. Justice Winkler in approving the class action settlement in his judgment of October 22, 1999, are finite and explicit. If a Claimant cannot establish the threshold requirement that a blood transfusion was received during the Class Period, (ignoring for the moment the requirements with respect to establishing that the blood so transfused was infected), then the Claimant is not entitled to receive compensation. The Administrator has an obligation to assess each claim and determine whether or not the required proof for compensation exists. The Administrator has no discretion to allow compensation where the required proof does not exist. The financial sufficiency of the Fund depends upon the Administrator properly scrutinizing each claim and determining whether the Claimant qualifies. A Referee similarly has no jurisdiction to alter, enlarge or disregard the terms of the Settlement Agreement or Plan, or to extend or modify coverage.
Dated at Saskatoon, Saskatchewan, this 7th day of January 2002.
________________________________
DANIEL SHAPIRO, Q.C.
Referee