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Appeals: Confirmed
Referee Decisions : #87 - May 16, 2003
Decision of the Court having jurisdiction
in the Class Action attached - October 9, 2003
D E C I S I O N
1. On November 18, 2002, the Administrator denied the claim
for compensation as a Primarily-Infected Person pursuant to
the Transfused HCV Plan on the basis that the Claimant had
not provided sufficient evidence that she was infected for
the first time with HCV by a blood transfusion received in
Canada within the Class Period.
2. The Claimant requested an oral hearing by a Referee to
review the decision of the Administrator.
3. The Claimant now resides in Yellowknife, Northwest Territories,
but received four units of transfused blood at Mount St. Joseph's
Hospital in Vancouver, British Columbia between the last day
of October and the first day of November 1989.
4. The hearing was held on April 23, 2003 in Yellowknife,
Northwest Territories .
5. Neither party disputed the following facts:
(a) The clinical records from the Mount St. Joseph's Hospital
related to a hospitalization of the claimant on October 31,
1989 due to the sudden onset of vomiting large amounts of
fresh blood after having been drinking heavily for several
weeks and an admission to the intensive care unit for volume
replenishment blood transfusion and further management of
the gastrointestinal problem.
(b) She was discharged on November 16, 1989.
(c) The Claimant is infected with Hepatitis C.
(d) A trace back was initiated in June 2000.
(e) By letter of November 18, 2002, the Claimant was told
the results of her trace back confirmed the donors of the
blood transfused to her during the Class Period had tested
negative for the HCV antibody and she did not meet the criteria
for compensation
6. Fund Counsel tendered all of the documentation filed in
the matter as Exhibit 1 at the hearing.
7. At the time of the hearing, the Claimant stated that she
could think of no way she could have contracted Hepatitis
C other than the transfusions on the dates in question.
8 I reviewed Exhibit 1 together with the Claimant, Fund Counsel
and Carol Miller, the Appeals Coordinator of the Hepatitis
C January 1, 1986 - January 1990 Claims Centre.
9. During review of the Tran 1 form, the Claimant stated that
to the best of her memory, much of the information had been
entered by a staff member at the office of the lawyer representing
her at the initial phase of her claim, who then mailed it
to her in a partially completed form. She believed that she
had personally answered questions 1, 9 and 10 of section A,
which certify the belief that she was infected with the Hepatitis
C virus through a blood transfusion received in Canada between
January 1, 1986 and January 1, 1990, and the fact that she
had never received a blood transfusion outside of Canada.
She then signed her name, dated the document on February 20,
2001, and returned it the law firm.
10. The Claimant explained that the Tran 2 was filled out
by Dr. Mahboub, her physician only between 1999 and 2001 after
she moved to Yellowknife.
11. Dr. Mahboub answered "No" in the Tran 2 under
paragraph 3 to the question "is there anything in the
HCV infected person's medical history that indicates he or
she was infected with Hepatitis non A, non B or Hepatitis
C virus prior to January 1, 1986?", but the Claimant
confirmed she had given that advice to Dr. Mahboub prior to
his filling out the form.
12. I asked her to relate her prior medical history from birth,
and noted:
· she had been married from 1972 to 1979; had a common-law
relationship as well as at least one other liaison for an
indeterminate period but did not think she could have acquired
the disease during the life of those relationships,
· she had delivered three babies all by cesarean section
in the years 1973, 1974 and 1979 but there had been no complications
during those deliveries to the best of her memory,
· she had been incarcerated for six months in British
Columbia for a conviction for an accidental fatal shooting
but could not remember the dates of the incarceration.
· she acknowledged that the hospital records in question
likely had not been transmitted to Dr. Mahboub after her relocation
to Yellowknife,
· she was unable to account for some five years of
her life history,
13. I noted from the hospital records, including nurses notes,
that:
· she was diagnosed in November 1989 with severe hematenesis
very likely secondary to alcoholic gastritis, pelvic ulcer
disease and severe alcoholic liver disease;
· she was slightly jaundiced in general;
· she was living in the same house with someone who
had Hepatitis due to IV drug use but denied using drugs;
· her drinking habit consisted of twelve beer a day;
· on discharge hospital staff instructed the patient
not to drink alcohol anymore.
14. At the hearing, the Claimant admitted that she had been
a binge drinker prior to and at the time of her hospitalization,
but denied:
· previously seeing or being aware of the handwritten
notes on top of the discharge summary that repeated the typewritten
diagnosis of her conditions of severe acute liver disease
related to alcohol,
· any recollection of being advised after that hospitalization
not to drink alcohol,
· that she may have had lapses of memory with respect
to her activities or her living circumstances during drinking
binges.
15. The Claimant did not present any evidence to suggest that
the donors of the blood products were infected with the virus.
16. I offered her the opportunity to call further evidence
to support her claim, but she declined the same.
17. From a review of all of the documentation submitted by
the Claimant together with her oral evidence at the hearing,
I concluded the declaration by Dr. Mahboub in the Tran 2 was
likely made without knowledge to all the relevant medical
information, in particular the relevant risk factors present
prior to her hospitalization including her incarceration,
acute liver disease brought on by alcohol prior to the blood
transfusion, the living with a person who was positive with
Hepatitis through IV drug use, and the fact that her binge
drinking in the periods prior to the hospitalization could
have put her in contact with the Hepatitis C virus in other
high risk activities without her knowledge or recollection.
18. I found no evidence to show on a balance of probabilities
or otherwise, that she was infected for the first time with
HCV by a blood transfusion received in Canada during the Class
Period.
19. Accordingly, I uphold the Administrator's denial of the
Claimant's request for compensation.
Dated at Edmonton, Alberta, this 16th day of May, 2003.
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Shelley L. Miller, Q.C. Referee
J U D I C I A L D E C I S I O N
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