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Appeals: Confirmed
Referee Decisions : #122 - January 16, 2004
Decision of the Court having jurisdiction in the Class Action attached - December 15, 2004
D E C I S I O N
This decision is further to a Request for Review, which came
before me on July 31, 2003, then, for a second day of hearing
on November 7, 2003.
On the opening day of the hearing, the Claimant (and her sister
who participated in all decisions and explanations) chose
to change her Request for Review, now wanting to have the
Administrator's decision reviewed by a Referee rather than
by an Arbitrator as originally requested. The Fund Counsel
agreed to such a change and the Undersigned thus proceeded
with the hearing on July 31, 2003 and the subsequent one as
a Referee. It is in this capacity that I render this decision.
The Claimant, the daughter of a Transfused person who died
in January 2001, initiated action with her sister to have
the Fund Administrator recognize that their deceased father
had outright contracted Hepatitis C, further to a blood transfusion
received in 1989.
In order not to take any chances, the Claimant and her sister
took on a tremendous preparation, review and analysis job
and I am thankful to them, since such work, while not necessarily
easing my task, allows me nonetheless to render a decision
based on the most complete documentation possible, in spite
of the many years that have gone by.
Born in 1917, the Claimant's father led what she describes
as a quiet life. There is no evidence that the Claimant's
father was ever tattooed or that he had his body pierced,
that he ever took intravenous drugs without prescription or
yet, that he had traveled to faraway countries. However, over
the years, he had undergone surgical procedures, which I will
deal with later on in this case.
While it is admitted that the Claimant's father received two
units of blood during the Class Action Period (March 1989),
there is no evidence that he otherwise received other transfusions
outside such a period.
It is also admitted that the Claimant's father had been HCV
infected, that he had contracted Chronic Hepatitis C accompanied
by Compensated Cirrhosis and that his death had been caused
by his HCV infection.
What has this terrible Hepatitis C illness to do with the
life of this man, that was apparently untarnished? What is
the source of it? And even in the face of a blood transfusion
investigation, which proves to be negative, are there sufficient
elements to be satisfied that HCV is the result of one or
the other of the 1989 transfusions?
A long discussion took place before me which was first supported
by letters from the Hepatologist who treated the Claimant's
father (exhibits A-7 and A-8) to the effect that traceback
tests completed by the Red Cross at the time or by Hema-Quebec
are not necessarily reliable; the donor, who was HCV positive
in 1989, could have recovered from his Hepatitis C and could
have been free of the markers when he was tested some twelve
(12) years later.
To ensure that I had access to all relevant evidence, I invited
the Claimant, after the July 31, 2003 hearing to complete
her evidence by calling her expert witnesses to the hearing
as I invited the Fund Counsel to call his expert witnesses
in order to better clarify the position put forward by the
Fund side. The hearing thus resumed on November 7, 2003 and
I then heard Dr. Jean-Pierre Villeneuve, a renowned Gastroenterologist
and Hepatologist, the Physician who had been called to testify
by the Claimant. The Fund Counsel chose not to call any expert
witnesses preferring rather to rely on the already submitted
documentation.
According to Dr. Villeneuve, the clinical history of the Claimant's
father is compatible with the HCV contracted at the time of
one of the 1989 transfusions.
Dr. Villeneuve challenges the traceback conducted by Héma-Quebec
by raising two hypotheses to explain how one or the other
of the donors could have tested negative when tested, but
still transmitted Hepatitis C to the Claimant's father.
According to the first hypothesis, a donor was HCV infected
when he gave blood, but he recovered thereafter and lost the
antibodies. According to this expert, about 25% of the people
who contract Hepatitis C recover and about one third of those
25% are free of the antibodies ten to twenty years after having
had an acute infection. The donor could therefore possibly
fall in this ± 8%.
The other hypothesis suggests that one of the donors was HCV
positive without having the antibody. It appears that, in
this case, the possibility of such a situation would be less
than 1%.
However, Dr. Villeneuve recognizes that the Claimant's father
could have contracted Hepatitis C from other sources, for
example, during one or the other of his surgical procedures,
but he considers that the "preponderance of the evidence"
rather favors the transfusions.
Dr. Villeneuve also recognizes that the fact that the Claimant's
father contracted a liver cirrhosis as early as 1996, i. e.,
seven (7) years after his transfusions, was somewhat surprising,
since it takes about twenty (20) years on average to develop
a cirrhosis. He explains that as the Claimant's father was
old, as certain studies indicate that the illness generally
evolves more quickly in men than in women and as people infected
through transfusions can evolve more quickly than other infected
people, these are as many factors that can explain how a liver
cirrhosis was contracted that early.
As mentioned above, before discovering the first problems
that can be related to Hepatitis C, I found that the Claimant's
father was hospitalized several times and had at least five
(5) surgical procedures, for an appendectomy in 1943, for
a cholecystectomy in 1962, for an intestinal surgery in 1975,
for a surgery following an aneurysm rupture in 1989 and for
a pacemaker implant in 1991. Also, during the same period,
he underwent invasive examinations such as a colonoscopy.
Through analysis of all this evidence and documentation, I
conclude that it is possible that the Claimant's father
contracted the Hepatitis C at the time of one of the March
1989 transfusions. Unfortunately, I cannot be sufficiently
convinced to ignore the wording of Section 3.04(1). Section
3.04(1) of the Transfused HCV Plan (1986-1990) provides that
if results of a Traceback Procedure show that none of the
donors is or was anti-HCV positive, the Administrator must
reject this HCV infected person's claim. It is therefore on
this basis that the Administrator rejected the request for
compensation.
On the other hand, Section 3.04(2) provides that the Claimant
can prove that he had been infected for the first time following
a transfusion, despite the Traceback Procedure results.
The Fund Counsel and I had long discussions during this Request
for Review hearing on how to interpret Section 3.04(2) and
on the Claimant's burden of proof. If one wants Section 3.04(2)
to mean anything, the Claimant, in certain circumstances,
even without having access to the donors' personal files,
must be able to discharge this burden of proof. Thus, I do
not believe that it is sufficient for the Fund side to argue
that there are no known reasons of infection for ten, fifteen
or twenty percent of the infected persons and that it is an
answer to all contrary argument, nor an invalidating argument
against all claims.
I read with great interest the decision made by my colleague,
Referee Robert S. Montgomery, Q.C. of April 16, 2003 (# 93)
where he chose to allow a Request for Review, considering
that there were no explanations for the presence of Hepatitis
C other than that of the transfusion. In part due to the medical
and surgical history of the Claimant's father, in part due
to the evidence submitted by both sides, I cannot come to
the same conclusion in this case, as I cannot either be satisfied
that the Claimant has discharged the burden of proof under
Section 3.04(2).
I take the liberty to reproduce here a long extract from a
decision by Mr. Justice I.H. Pitfield concerning Claim no.
1300773 and his October 9, 2003 decision:
"[8] I discussed the review and appeal requirements in
relation to the 1986-90 Settlement Agreement in Re Claim
No. 1300593, [2003] B.C.J. No. 1088 (QL), 2003 BCSC 739.
At paras. 15-16, I set out a non-exhaustive list of the kinds
of evidence a Claimant would need
to adduce in order to refute a negative traceback result:
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[15]
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...[A]t the least, complete family and personal
medical history and
detailed evidence of all aspects of the claimant's lifestyle
including
evidence of the absence of opportunity to be infected
by needles or
injections, however and for whatever purpose received.
... |
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[16]
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A simple denial by a Claimant of personal
history or actions that have
been identified as potential non-transfusion sources of
HCV infection
will not suffice. The reliability of the assertion which
is subjective in
nature would have to be tested by reference to all known
objective
evidence. One of the pieces of objective evidence is the
negative
traceback result following upon the application of, and
adherence to,
the approved traceback protocol. Contradictory objective
evidence would have
to be very persuasive if the traceback result is the
be refuted. [emphasis added] |
[9] In sum, there must be some persuasive evidence provided
by the Claimant to establish on the balance of probabilities
that the source of the infection was from the blood products
received during the Class Period."
As in the case of the Referee and Mr. Justice Pitfield, the
two judges involved in Case # 1300773, I did not find any
evidence to prove, on the balance of probabilities or otherwise,
that the Claimant's father had been HCV infected for the first
time, following a blood transfusion received during the Class
Action Period. Specifically, I cannot find in the otherwise
very well presented explanations of Dr. Villeneuve, the elements
that can satisfy me that the Claimant has proven, despite
the Traceback Procedure results, that her father had been
HCV infected for the first time following one of the blood
transfusions received in 1989.
I must remind the Claimant and her sister that the Settlement
Agreement cannot necessarily cover all cases, that it represents
an agreed-upon compromise, with its strengths and weaknesses,
aimed at compensating those who meet the terms and conditions
of the Agreement. This Agreement tries to compensate those
Claimants who are eligible, but also to protect the Fund assets
against Claimants who are not entitled to compensation.
It is therefore in this context that I confirm the Administrator's
decision and that I reject the Request for Review.
Montreal, January 16, 2004
(S) Jacques Nols
Jacques Nols
Referee
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