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Appeals: Unconfirmed
Referee Decisions : #138 - April 2, 2004
D E C I S I O N
1. The Claimant, an Ontario resident, has submitted an application for compensation as a primarily infected person under the HCV Transfused Plan. In her Blood Transfusion History Form, the Claimant stated that she received a blood transfusion in September 1988 at St. Joseph’s Hospital as a consequence of her attempted suicide by drug overdose. In a second Blood Transfusion History Form, there is a further statement that the Claimant received a transfusion in September 1988 at Northwestern hospital as a result of a tubal pregnancy and removal of her fallopian tube.
2. By letter dated August 29, 2002 the Administrator denied the claim on the basis that the Claimant did not provide sufficient evidence that she received blood during the Class Period. The Claimant requested that a Referee(1) review the decision of the Administrator.
3. An oral hearing was convened on September 12, 2003. The matter was adjourned with directions to Fund Counsel to attempt to locate further documentary proof of transfusion. A further day of oral hearing was held on January 9, 2004, and was followed by final, written submissions.
Facts
4. The Claimant stated that she received a blood transfusion at St. Joseph’s Hospital in September, 1988. In support of her claim(2), she testified that she was admitted to hospital after an attempted suicide by drug overdose and that she received a blood transfusion in order to “cleanse toxins” from her system. She was very groggy when she awoke in the hospital, however, she recalls seeing a bag of blood and a lot of tubes. She didn’t really understand what was going on at the time, however, she remembers telling the nurses that she was bleeding. She also remembers being told that she received blood to treat her overdose.
5. The Claimant’s mother testified that she was telephoned by staff at the hospital and told that the Claimant was being treated for a drug overdose. She immediately went to the hospital; upon her arrival, she saw the Claimant who was unconscious and had “intra venous tubes everywhere”. The Claimant’s mother remembers seeing a stand with a bag of blood and a bag of “white liquid” beside her daughter. She asked the nurse why she was hanging a bag of blood on the stand and was told that she would have to ask the Claimant’s doctor. She did not speak to the doctor and none of the nurses would give her any information regarding her daughter’s treatment or condition. She recalled that her daughter was unconscious for several days and that she was hospitalized for three weeks.
6. At the time that the Claimant believes she was transfused, her then boyfriend, Mr. D.T.(3), also attended at the hospital. The Claimant had known D.T. for many years and they had been involved in a lengthy, intimate relationship; they were not living together at the time, however, he did occasionally stay overnight.
7. Mr. D.T. testified that he saw the Claimant receiving a blood transfusion: when he arrived at the hospital the Claimant said “look they’re giving me a transfusion” and when he looked up he saw a bag with red liquid about ¼ full with a St. John’s cross on it. To the best of his recollection, he also believes that the nurse confirmed that the Claimant was being transfused to get rid of toxins in the Claimant’s blood. He only saw blood products on the first day that he visited the Claimant, which was the second or third day after her admission. He could not recall the date of the Claimant’s admission or his visits.
8. On cross examination, D.T. acknowledged that when he first saw her, the Claimant was incoherent and appeared to be talking about her dreams; when he looked up he saw an IV line running from a bag of blood; there was only one bag on the IV pole. He thought that the line was transparent and it seemed as if the transfusion was over; the bag was almost empty and he wasn’t sure whether there was anything still going through the line.
9. Medical records produced by St. Joseph’s Hospital did not contain any record of an admission in September 1988. The Hospital confirmed that it searched its medical and blood bank records from 1984 onwards and there were records of four other admissions: December 7, 1987-January 27, 1988; January 28-February 5, 1988; April 16-18, 1988; and July 1-18, 1988. The first three admissions were as a consequence of a diagnosed drug overdoses and the last admission was to treat depression. There is no indication in any of the hospital records produced by St. Joseph’s Hospital , however, that the Claimant was cross matched for blood or received a blood transfusion.
10. The Claimant did not wish to provide a consent for the release of her psychiatric records from St. Joseph’s Hospital(4), although she did produce partial copies of the discharge notes prepared after her admission in July 1988. The Claimant ’s personal history stated that she had been in a common-law marriage for many years, that she and her “boyfriend” had separated briefly a few years before and that he had left her again a few weeks prior to her hospitalization. The Claimant’s boyfriend was not named. There was no reference in these excerpts from the Claimant’s psychiatric records that she received a blood transfusion on any occasion that she was treated at St. Joseph’s hospital.
11. In a second Blood Transfusion History Form(5), dated February 7, 2001 and signed by “Pataki”, the Claimant was said to have been transfused at Northwestern Hospital in September, 1988 following a tubal pregnancy and removal of her fallopian tube.
12. Northwestern Hospital indicated that the Claimant had not been transfused at their hospital, however, medical records for this period were no longer available and were therefore not produced(6). When Dr. Pataki was contacted, he indicated that it was not his signature on the form submitted by the Claimant, that he has never been affiliated with Northwestern Hospital and that, to the best of his knowledge, he has not treated the Claimant.
13. The Claimant had little recollection of these events; she believed that her tubal pregnancy was in the early ‘80’s. The Claimant did not provide any alternative evidence with respect to the alleged transfusion referred to in the Blood Transfusion History Form. She relied on the transfusion which she recalled receiving at St. Joseph’s Hospital.
14. The Canadian Blood Services’ final report for Traceback of blood products received by the Claimant confirmed that the Claimant did not receive a transfusion in 1988 at either St. Joseph’s Hospital or Northwestern Hospital. The Blood Bank records were also searched and no records of transfusion were found for the Claimant at any time in the class period.
15. Carol Miller, the Appeal Coordinator at the 86-90 Hepatitis C Claim Centre and a nurse with over 20 years experience in a wide variety of settings, reviewed the usual records of blood transfusions: requisition form to test for and determine the patient’s blood type; requisition sent to the blood bank to cross-match and locate compatible blood; unit numbers recorded as saved at the blood bank if required; any blood actually removed from the blood bank is signed out and double checked by a nurse and lab technician; when delivered to the patient for transfusion two attending nurses check and sign records; also recorded in hospital notes and signed by two nurses when blood transfused to the patient; transfusion also recorded in notes of attending physician. A record is maintained of the amount and date of transfusion.
16. The Claimant’s hospital records do not disclose any of the records that would normally be found if blood was transfused. If a transfusion had occurred, Ms. Miller would expect that there would be a record of the transfusion at the blood bank and in the Claimant’s hospital records. Ms. Miller further testified that in her experience, blood transfusions are not generally used to treat drug overdoses; a blood transfusion merely provides additional blood, it does not “cleanse toxins” from the recipient’s system. There are a number of treatments to address drug overdose, including cleaning the blood through dialysis where the patient’s blood goes through an external filter and is then returned to the patient. When a patient does receive a transfusion, it is rare that blood would be hung alone, it is normally hung together with a bag of saline to allow for the line to be switched as required.
17. Ms. Miller also reviewed the Traceback Report produced by the Canadian Blood Services confirming that both Northwestern General Hospital and St. Joseph’s Health Centre stated that the Claimant did not receive a blood transfusion at their facility. St. Joseph’s did note that the Claimant was blood typed but not transfused during three of her admissions at their hospital. There were no records of date of transfusion or unit number of transfused blood products.
Submissions
18. The Claimant relied on her own recollection and that provided by her mother and former boyfriend to establish that she received a blood transfusion in the Class Period. She does not know what happened to the hospital records, however, she wondered whether they had been lost.
19. In support of the Administrator’s decision, Fund Counsel submitted that there was no medical documentation to demonstrate that the Claimant was transfused in 1988, or at any other time in the Class Period. The further evidence relied upon by the Claimant was insufficient under the terms of the Plan as it was not from an independent source, as defined under the Plan. It was also suggested that, in any event, this evidence was not sufficiently reliable to establish on a balance of probabilities that the Claimant was transfused in the Class Period.
The Plan
20. The Plan provides, in part, as follows:
ARTICLE THREE
REQUIRED PROOF FOR COMPENSATION
3.01 Claim by Primarily-Infected Person
(1) A person claiming to be a Primarily Infected Person must deliver to the Administrator an application form prescribed by the Administrator together with:
a.
medical, clinical, laboratory, hospital, The Canadian Red Cross Society, or Canadian Blood Services or Hema Quebec records demonstrating that the claimant received a Blood transfusion in Canada during the Class Period;
…
(2) Notwithstanding the provisions of Section 3.01 (1) (a), if a claimant cannot comply with the provisions of Section 3.01(1)(a), the claimant must deliver to the Administrator corroborating evidence independent of the personal recollection of the claimant or any person who is a Family Member of the claimant establishing on a balance of probabilities that he or she received a Blood transfusion in Canada during the Class Period.
The Definition of “Family Member” in Article 1.01 includes “Spouse” or “former Spouse” of an HCV Infected Person.
“Spouse” means:
(a) either of a man and a woman who,
(i) are married to each other;
(ii)
have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Plan;
(iii)
have Cohabited for at least two years; or
(iv)
have Cohabited in a relationship of some permanence if they are the natural Parents of a Child; or …(7)
Analysis
21. The Claimant has applied for compensation under the terms of the Hepatitis C 1986-1990 Class Action Settlement, as approved by Court Order dated October 22, 1999. There is no dispute that the Claimant has been diagnosed with Hepatitis C. The sole issue on this Reference is whether there is sufficient evidence to establish on a balance of probabilities that the Claimant received a blood transfusion in the Class Period.
12. The terms of the settlement provide a detailed outline of who is eligible for compensation, and how eligibility can be proven. In accordance with the terms of the Settlement, to qualify as an eligible class member, there are a number of factual elements that must be established. In this case, the Claimant must demonstrate that she received a blood transfusion in Canada in the period January 1, 1986 to July 1, 1990. She can do this by producing one of the approved documents listed in the settlement, such as a medical or laboratory record. Or, if the designated records are not available, she can also prove her entitlement by supplying independent evidence to support her claim. The Claimant’s own recollection that she received a transfusion, or the recollection of someone in her family would not, according to the terms of the settlement, be enough to substantiate her claim.
13. Based on my review of the evidence in this case, and bearing in mind the limitations that I have outlined, I cannot conclude, on a balance of probabilities, that the Claimant received blood during the Class Period. There is no objective medical documentation to support her Claim. None of the medical records that have been produced indicate that the Claimant was transfused in the Class Period. St. Joseph’s Health Centre did have records indicating that the Claimant’s blood was typed, however, there is no corresponding record of cross matching or actual transfusion. As a precautionary matter, it is not uncommon for a patient’s blood to be typed in the event that a transfusion is required, however, normal protocol results in a series of separate records documenting that the transfusion occurred, including the date and unit number of blood products used. None of these other records could be located in this instance.
14. The Claimant relied on her own recollection and that provided by her mother and former boyfriend to establish that she was transfused. Where there is no objective medical records establishing that a Claimant was transfused in the Class Period, the Plan requires other evidence that is “independent of the personal recollection of the claimant or any person who is a Family Member of the claimant”. The Claimant’s own recollection and that of her mother are therefore not sufficient to establish eligibility for compensation.
15. The Administrator has also submitted D.T. was the Claimant’s common law spouse and that his evidence is not ;;independent corroborating evidence. There is evidence that D.T. and the Claimant had co-habited, however, the precise period or duration of cohabitation was not clearly established. The definition of spouse provided in the Plan requires a period of cohabitation of at least two years. Based on the evidence provided by both the Claimant and D.T., it appears likely that he meets the definition of spouse or former spouse and that his evidence would not provide independent corroboration that the Claimant was transfused. However, in the absence of clear evidence that the Claimant and D.T. had co-habited for two years, I am reluctant to make my finding solely on this basis.
16. Whether or not D.T. meets the definition of Family Member under the Plan, I have serious reservations about the reliability and sufficiency of his evidence. He admitted that he was shocked when he first saw the Claimant at the hospital and that his memory of the details of what he observed was somewhat hazy. That his memory of events was vague was confirmed by his testimony:
a. He could not remember the date of the Claimant’s hospital admission or his visit. He thought that it was in the fall of 1988, however, there is no record of admission for the Claimant in this timeframe;
b. There were a number of inconsistencies in his testimony: he initially testified that he saw the Claimant being transfused; he later stated that it looked like the transfusion was over and that the IV line was clear without any blood left in it; and finally he provided a third version, that the transfusion was “almost over” with the line being almost empty with a bit of blood going through the line;
c. He testified that there was only one bag, containing blood products, on the IV pole beside the Claimant; he did not see any other bag present. This is inconsistent with the evidence of the Claimant’s mother and of Carol Miller that saline and blood products are almost always hung together when a transfusion is given;
d. He claimed that the Claimant told him that she received a transfusion to “clean the toxins” from her system and that he was told the same thing by the attending nurse. He admitted that the Claimant was very confused when he spoke to her. His testimony regarding the information he received from the nurse is inconsistent with the evidence of the Claimant’s mother who was told that the nursing staff would not disclose any details regarding the Claimant’s condition and that she would have to get that information from the treating physician.
17. I am especially troubled by the inconsistencies in D.T.’s evidence in light of the evidence of Ms. Miller that, in her experience as a nurse, blood transfusions are not given to treat a drug overdose and, more importantly, that a transfusion does not detoxify or remove toxins. No other credible explanation was offered to support the likelihood that the Claimant received a blood transfusion at this, or any other time. Viewing the evidence as a whole, the inconsistencies in D.T.’s evidence give rise to real doubts about reliability of his testimony. Ultimately, when I consider all of the evidence presented on this Reference, I am not persuaded by the testimony of D.T. that the Claimant was transfused in 1988.
18. In conducting this Reference, every effort was made to assist the Claimant in tracking down all potential evidence that might establish transfusion in the Class Period. Nonetheless, neither her medical or blood bank records disclose that she received a transfusion at any time during the Class Period at St. Joseph’s Hospital or Northwestern Hospital. Finally, the other evidence that was provided is not sufficiently reliable or independent to satisfy me that the Claimant was transfused in the Class Period.
19. I understand the Claimant’s desire to obtain assistance from any available source. She was very sincere in expressing her anxiety and the needs she has as a result of her illness. Unfortunately, I am bound by the terms of the Plan and I must be satisfied, on a balance of probabilities, that she received a blood transfusion in the designated Class Period. On the basis of the evidence before me, I conclude that the Claimant is not eligible for compensation under the terms of the class action settlement and I recommend that the decision of the Administrator be upheld.
Dated April 2, 2004
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Reva Devins, Referee
- The Claimant originally elected to proceed by Arbitration, however, subsequently elected a Reference.
- The Claimant also produced a letter from a long term friend, J.P., who described the Claimant as an honest person who she has never known to tell lies. J.P. does not remember, however, if the Claimant had a blood transfusion, although she does not believe that the Claimant would lie or be untruthful.
- The full name of this witness appears on the cover page only to ensure that the Claimant is not identified.
- When it became apparent that St. Joseph’s Health Centre had not produced the Claimant’s complete psychiatric file, the Claimant was asked if she would like to request these records, either to be directly produced in support of her claim for compensation or so that she could first review them and determine whether she would like to rely on them. The Claimant wanted to proceed without these records.
- Tran 5 form.
- By letter dated September 29, 2003 P. D’Ascanio of the Health Information Services at Humber River Regional Hospital advised that due to the merger of the Northwestern and Humber facilities, records from 1988 could not be retrieved.
- Subsection b) of the definition pertains to same sex couples and is not relevant for the purposes of this Reference.
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