Appeals: Confirmed Referee Decisions : #173 - January 7, 2005

D E C I S I O N

The Claimant received two (2) blood transfusions in March 1990.

The two (2) donors having been identified and having subsequently tested negative on the HCV Antibody Test, the claim presented pursuant to the 1986-1990 Hepatitis C Settlement Agreement was rejected on March 8, 2004 by the Class Settlement Administrator.

As a result of this decision, the Claimant submitted a Request for Review, which I heard as Referee on November 29, 2004.

The Claimant, who comes from a North-African country, underwent surgery at St Mary's Hospital, in Montreal, in March 1990 where she received two (2) transfusions. According to the Claimant, those were the only two (2) transfusions that she received during her lifetime.

As the Fund Counsel had done previously, the Claimant submitted a very interesting and well-articulated written submission. Incidentally, the Claimant appeared before me on November 29 and explained her position in minute details and with a lot of conviction. The Claimant agrees that the two (2) 1990 donors proved out to be anti-HCV negative and she does not question, according to her, the Héma-Québec investigation (the donors in question underwent a total of seven (7) tests each and they always tested negative, one between 1990 and 2004, and the other between 1990 and 1994.

However, the Claimant said that she questions the possibility that there could have been an error in the transcription of the donors' numbers at the hospital center, and she also insists on the fact that there could also have been contamination from the material used at the time of the surgery. She also said that she had noticed, during subsequent visits in the same hospital or even in other hospitals, that the nurses didn't wash their hands as often or as long as they should have had.

I found in the file two (2) letters from the Plaintiff's treating physicians, a letter dated September 14, 2004 from Dr. Jean Tchervenkov :

"In 1990 she underwent a hysterectomy at St. Mary's during and immediately following which she received blood transfusions and it is quite possible that it was from this that she contracted the hepatitis C infection...

She was born in (country) in (19..) and left there for Canada in 1963 and it is possible that she may have contracted the disease while living there although she showed no evidence of liver disease prior to 1990. If all her tests prior to 1990 were indeed normal (and this should be investigated) this would indicate that the hepatitis C was indeed contracted from contaminated blood in 1990. This cannot be proved absolutely but since she has been in Canada since 1963 and has never revisited (country) since then, it is very unlikely that (country) was the source of her infection."

and another letter from Dr. Vicky Baffis, dated May 27, 2004:

"Her infection most likely occurred at a young age being (country of origin) where over 50% of the population is known to have Hepatitis C. Other sources of infection may include her numerous surgeries…"

Section 3.04 (1) of the Transfused HCV Plan provides that if the results of a Traceback Procedure show that none of the donors of the blood units received by a Primarily-Infected Person… is or was not anti-HCV positive, subject to the provisions of Paragraph 3.04 (2), the Administrator must reject the claim of that HCV infected person…."

The information provided by the Plaintiff, the above-mentioned letters and all the documents and explanations that were submitted to me do not allow me to consider that the Claimant discharged the burden of proving that she had been HCV infected for the first time by one of the transfusions received during the Class Action Period, and this, in spite of the results of the Traceback Procedure.

To this effect, even though it is impossible for me to completely ignore Dr. Baffis' letter, I feel that my decision would have been the same without that letter, as it seems to me that the Claimant did not meet the criteria required under Section 3.04 (2) and those that can be found in various decisions of my colleague Referees and Arbitrators and in the decision of Mr. Justice I.H. Pitfield rendered on May 9, 2003, confirming the decision made in the case reported under number 53.

Based on the provisions of the Transfused HCV Plan, the Plan Administrator had to reject this Claimant's compensation claim and I feel that this claim was correctly rejected.

I allow the Administrator's decision to reject the request for compensation, pursuant to the 1986 -1990 Hepatitis C Settlement Agreement.

MONTREAL, January 7, 2005

Jacques Nols
Referee