Appeals : Arbitrator Decisions : #74 - January 13, 2003

D E C I S I O N

A. Background

1. The Claimant submitted an application for compensation as a Primarily-Infected Person under the Tranfused HCV Plan (the "Plan"), as set out under the terms of the 1986-1990 Hepatitis C Settlement Agreement (the "Settlement Agreement").

2. By letter dated November 23, 2001, the Administrator denied her claim on the basis that the Claimant did not receive transfused blood within the Class Period from a donor who is determined to be HCV antibody positive.

3. The Claimant requested that the Administrator's denial of her claim be reviewed by an arbitrator at an in-person hearing.

4. A hearing commenced on March 27, 2002 and was adjourned for the purpose of inquiring as to whether there was any further evidence concerning the Traceback Procedure conducted by Canadian Blood Services ("CBS") and also any further evidence pertaining to the Claimant's attendance at Ridge Meadows Hospital on August 12, 1988 and admission to Royal Columbian Hospital ("RCH") on that same date to her eventual discharge date from RCH. There were very few contemporaneous records in the record before me.

5. During the adjournment Fund Counsel made the further inquiries of CBS and additional information was obtained from both hospitals. No additional contemporaneous records were obtained.

6. The hearing resumed on January 6, 2003 at which time the additional information from the hospitals via CBS was reviewed.

B. Facts

7. I summarize the pertinent facts from the evidence as follows:

(a) The Claimant is infected with Hepatitis C;

(b) The Claimant was injured in a serious motor vehicle accident on August 12, 1988, and she suffered a severe head injury;

(c) The Claimant was taken to Ridge Meadows Hospital and was then transferred to RCH;

(d) A record of Ridge Meadows Hospital dated August 12, 1988, indicates that two units of blood, numbered 329746 and 318474, were cross-matched for the Claimant at 16:40 (p. 39, Tab 3, Exhibit 1);

(e) The Report of Transfusion-Related Infection of Ridge Meadows Hospital (the "Ridge Meadows Report of Transfusion") has units numbered 329746 and 318474 listed but crossed out on the form. A handwritten note in the margin indicates "check digits" and it also states that "Units sent to RCH with patient. I believe patient was transfused @ RCH." This document was generated as part of the Traceback Procedure (p. 5, Tab 4, Exhibit 1);

(f) A Record of RCH dated August 12,1988 shows that four units of blood, numbered 332774, 334510, 332737 and 334491 were cross-matched for the Claimant at 21:07 (p. 40, Tab 3, Exhibit 1);

(g) Units numbered 329746 and 318474 do not show up on the records of RCH;

(h) The Report of Transfusion - Related Infection of Royal Columbian Hospital (the "RCH Report of Transfusion") obtained as part of the Traceback Procedure shows that the Claimant received two blood transfusions at RCH;- one for unit number 332774 on August 12 and one for unit number 332737 on August 14, 1988 (p. 12, Tab 4, Exhibit 1);

(i) There is a sticker numbered 332774 on the RCH cross-matching record that corresponds to the same sticker placed on another record of RCH pertaining to a craniotomy performed on August 12, 1988 (pp. 40 and 42, Tab 3, Exhibit 1);

(j) There is also a signature on the contemporaneous RCH cross-matching report on the line next to unit number 332737, indicating a time of 14:15 and date of August 14, 1988 which corresponds to the time and date indicated for unit 332737 on a Miscellaneous Report of the RCH which report is also signed off (pp. 40 and 43, Tab 3, Exhibit 1);

(k) Another record of RCH shows that an additional two units of blood, numbered 335266 and 335299, were cross-matched for the Claimant for pre-operative purposes on August 17, 1988, at 17:26 (p. 44, Tab 3, Exhibit 1);

(l) When the claim was made, the Administrator directed the required Traceback Procedure to be carried out by CBS with respect to units numbered 332774 and 332737, known to have been transfused to the Claimant;

(m) By letter dated December 13, 2000, the Administrator was advised that there was no positive donor identified in the Class Period;

(n) The Claimant had two tattoos in the early 1990's but could not remember the location at which they had been done;

(o) Following the filing of the claim, Fund Counsel requested further information from CBS concerning the Traceback Procedure carried out with respect to the Claimant, which confirmed and supported the facts noted above. This information is contained in a report describing the Traceback Procedure in terms of the methodology employed and the results obtained (report dated February 13, 2002, Tab 4, Exhibit 1);

(p) During the adjournment, further evidence was obtained from Ridge Meadows Hospital by CBS concerning units 329746 and 318474 which, as noted, the hospital, as a result of the Traceback Procedure, initially indicated were sent to RCH with the patient. The Supervisor of Blood Transfusion Services at Ridge Meadows subsequently reviewed the Ridge Meadows Report of Transfusion and indicated a further review of the records showed that units 329746 and 318474 were actually transfused to another patient (Tab 7, Exhibit 2);

(q) Further evidence obtained via CBS from RCH during the adjournment confirmed only units 332774 and 332737 were transfused to the Claimant and units 334510, 334491, 335266 and 335299 were not transfused to her (Tab 7, Exhibit 2).

C. The Position of the Parties

Claimant

8. The representative for the Claimant questioned the efficacy of the Traceback Procedure.

9. He also noted a typographical error in a letter from CBS dated December 7, 2000, in which unit number 332774 was referred to as 332744. He argued that given this error, there may have been other errors which draw the accuracy of the Traceback Procedure into question.

10. He argued that the Ridge Meadows Report of Transfusion constitutes evidence that an additional transfusion was performed either at Ridge Meadows Hospital or, alternatively, at RCH.

11. He further argued that the Traceback Procedure was incomplete as the additional units listed on the Ridge Meadows Report of Transfusion, units 329746 and 318474, and the additional units listed on the record of RCH as cross-matched for the Claimant, units 334510, 334491, 335266 and 335299, should also properly have been the subject of investigation of the donors as part of the Traceback Procedure.

12. He also argued that the documentation received via CBS during the adjournment was not convincing and proper and should not be received as evidence.

13. It was argued that given the degree of doubt created by the medical documentation, the Administrator did not have the right to deny the Claim.

The Administrator

14. Carol Miller, the Appeals Coordinator, who is also a nurse with many years experience, testified on February 27, 2002 that blood units are cross-matched to determine suitability for a particular patient.

15. She explained that if units of blood are to be removed from a hospital's blood bank, they must be signed out by either two nurses or an anaesthetist. If cross-matched units are not called upon, they remain in the blood bank and are not sent out for transfusion.

16. She indicated that this was the likely result with units numbered 334510, 334491, 335266 and 335229, which appear from the records of RCH to have been cross-matched but not called upon for transfusion.

17. She further explained that in the event that cross-matched units are called upon, they must be used or thrown out as they cannot be returned to the blood bank. She opined that units numbered 329746 and 318474 were probably thrown out as they do not show up on any of the records of RCH. However, Ridge Meadows Hospital, during the adjournment, indicated that the units had been transfused to another patient and were not in fact sent to RCH with the Claimant.

18. Mr. Ferguson, Fund Counsel for the Administrator, noted that CBS, under the Court Approved Protocol-Criteria for Traceback Procedure, tests only units of blood that have been transfused and does not attempt to trace units of blood that have been cross-matched but not transfused.

19. In his written submission, Mr. Ferguson acknowledged the error in the letter dated December 7, 2000 from CBS in which unit number 332774 was referred to as 332744. He referred to that error as typographical and referred to a subsequent letter from CBS that attached the medical documentation showing the correct unit numbers.

20. Mr. Ferguson also noted that the Claimant acknowledged having tattoos in the early 1990's and may not be able to determine the cause of her infection. As support for this contention, he referred to a document, published by the Canadian Liver Foundation in 2000 and containing information current to 1999, "Hepatitis C Medical Information Update", where it is noted at paragraph 1.0 that:

"In 10% of cases of hepatitis C, according to U.S. data, the source of infection cannot be identified."

D. Analysis

21. I am satisfied that the error in the letter from CBS dated December 7, 2000, was purely typographical and that nothing turns on this error.

22. It was common ground that the Claimant received transfusions of blood units numbered 332774 and 332737 on August 12 and August 14, 1988 respectively. These transfusions were confirmed in the documentation from RCH.

23. Units numbered 329746 and 318474 do not show up on the records of RCH. Ridge Meadows Hospital has stated that these units were in fact transfused to another patient. There is, at a minimum, insufficient evidence to demonstrate that the Claimant received a transfusion of either unit 329746 or 318474 or both. They were cross-matched for the Claimant but that is all.

24. The Rules for Arbitration which govern these proceedings provide that I may accept all oral or written evidence which in my discretion I consider proper whether admissible in a court of law or not. I am prepared to accept the new evidence from Ridge Meadows Hospital that these particular units of blood were transfused to another patient. The Claimant questions the trustworthiness of the evidence but offers no further evidence or records about these particular units. In the circumstances, I find as a fact that units 329746 and 318474 were not transfused to the Claimant.

25. I am further satisfied that units numbered 334510, 334491, 335266 and 335299, while cross-matched at RCH for the Claimant, were not called upon for transfusion and therefore did not leave the blood bank. There is no signature or sticker indicated on the RCH record pertaining to units numbered 334510, 334491 as would be the case, if the standard procedures, testified to by Carol Miller, was followed and these units were transfused. The standard procedure was followed, according to the record, for units 332774 and 332737, the transfused units. Additionally there is no further documentation showing that units numbered 335266 and 335299 were ever called upon for surgery on August 7, 1988 or at any other time. RCH confirms that these four units were not transfused to the Claimant. For the reasons stated in paragraph 23, I am prepared to accept as credible the new evidence from RCH. I therefore find as a fact that units 334510, 334491, 335266 and 335299 were not transfused to the Claimant.

26. The Claimant also acknowledged receiving tattoos prior to her diagnosis, which unfortunately could constitute an alternative source of infection.

27. The Settlement Agreement defines "Class Period", as the title implies, as the period "from and including 1 January 1986 to and including 1 July 1990." The Plan provides the identical definition and defines a "Primarily-Infected Person", as "a person who received a Blood transfusion in Canada during the Class
Period . . . ".

28. Pursuant to Article 3.01 of the Plan, a successful Claimant achieves status as a Primarily-Infected Person by producing medical records to the Administrator "demonstrating that the claimant received a Blood transfusion in Canada during the Class Period."

29. In this case, it is not disputed that the Claimant did receive blood transfusions in the Class Period, namely on August 12 and August 14, 1988.

30. A review of the medical documentation leads me to conclude that the other units of blood were readied, as a precautionary measure, in case a blood transfusion was necessary. Although blood products were available for transfusion, I am not satisfied that any other transfusions took place.

31. Unfortunately for the Claimant, speculation or doubts regarding the source of her infection cannot be relied upon to establish eligibility for compensation as a Primarily-Infected Person. I must base my decision on the evidence that was presented to me.

32. Article 3.04(1) of the Plan provides as follows:

Notwithstanding any other provision of this Agreement, if the results of a Traceback Procedure demonstrate that one of the donors or units of Blood received by a HCV-Infected Person or Opted-Out HCV Infected Person before 1 January 1986 is or was HCV antibody positive or that none of the donors or units of Blood received by a Primarily Infected Person or Opted-Out Primarily Infected Person during the Class Period is or was HCV antibody positive, subject to the provisions of Section 3.04(2), the Administrator must reject the Claim of such HCV Infected Person and all Claims pertaining to such HCV Infected Person or Opted-Out HCV Infected Person including Claims of Secondarily-Infected Persons, HCV Personal Representatives, Dependants and Family Members.

33. A Traceback Procedure is defined in Article 1.01 of the Plan as follows:

"Traceback Procedure" means a targeted search for and investigation of the donor and/or the units of Blood received by a HCV Infected Person.

34. A Traceback Procedure was conducted. It was established there were two units of blood transfused, one on August 12 and one on August 14, 1988. Each of the donors was identified by using the computerized information system that tracks blood donor information. CBS conducts Traceback Procedures in accordance with the Court Approved Traceback Protocol. There was no evidence before me that the amended Court Approved Protocol, as set out in Schedule 1 of the Order pronounced February 6, 2001 by the Supreme Court of British Columbia, was not followed. There was no argument about the Traceback Protocol at the arbitration. I reviewed the Order and I find that it was followed by CBS and the Administrator. By the terms of the Order the Administrator had to reject the Claim in the face of a negative traceback, subject to section 3.04(2) of the Plan.

35. Article 3.04(2) provides:

A claimant may prove that the relevant Primarily Infected Person or Opted-Out Primarily Infected Person was infected, for the first time, with HCV by a Blood transfusion received in Canada during the Class Period or that the relevant Secondarily-Infected Person or Secondarily-Infected Person who opted out of the Class Action in which he or she would otherwise be a Class Member was infected for the first time with HCV by his or her Spouse who is a Primarily Infected Person or Opted-Out Primarily Infected Person or Parent who is a HCV Infected Person or Opted-Out HCV Person, notwithstanding the results of the Traceback Procedure. For greater certainty, the costs of obtaining evidence to refute the results of a Traceback Procedure must be paid by the claimant unless otherwise ordered by a Referee, Arbitrator or Court.

36. I agree with the comments of Arbitrator Wacyk, who decided Ontario Claim No. 1402149 on February 16, 2002:

… [Article] 3.04(2) requires evidence that is specific to a particular claimant, and that provides, on a balance of probabilities, that that claimant was infected for the first time with HCV by a Blood Transfusion received in Canada during the Class Period.

37. On the basis of the facts of this case, I am obliged to find the Administrator had no alternative but to deny the Claim. The words of Article 3.04(1) of the Plan are clear and unambiguous that the Administrator " . . . must reject the Claim . . ." in circumstances such as these. The Administrator must administer the Plan in accordance with its terms. The Administrator does not have the authority to alter or ignore any of the provisions of the Plan. Similarly, an arbitrator, when called upon to review a decision of the Administrator, must apply the relevant provisions of the Plan to the individual circumstances of the Claimant and may not alter nor ignore any of its terms.

38. In my view, having considered all of the evidence, the Claimant falls far short of showing on a balance of probabilities that she was infected for the first time with HCV by a Blood transfusion in Canada during the Class Period. On the facts of this case, I must find that the Administrator correctly determined that the Claimant is not entitled to compensation pursuant to the Settlement Agreement.

39. Accordingly, I find that the Administrator's denial of the claim must be upheld.

DATED at Vancouver, British Columbia, this 13th day of January, 2003.
"Vincent R.K. Orchard"
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Vincent R.K. Orchard, Arbitrator