Appeals: Confirmed Referee Decisions : #150 - June 22, 2004

D E C I S I O N

Claimant presented a claim as a primarily infected person under the transfused HCV Plan.

The claim was denied by the Fund Administrator on the basis that claimant had not provided sufficient evidence to support his claim that he had received blood during the Class Period.

In September 2003, claimant filed a Request for review of such decision by a Referee.

This appeal proceeded before me, in Montreal, on March 31st, 2004.

Claimant, born in June 1966, was hospitalized for a day surgery at the Reddy Memorial Hospital in April 1987 and claimant alleges that he received a blood transfusion during his brief stay at the Reddy Memorial.

The evidence presented to the Administrator and before me confirms that claimant is infected with the HCV and the Administrator does not contest that fact.

What is contested however is whether claimant did in fact receive a blood transfusion at the Reddy Memorial Hospital. This hospital was closed in January 1997 and the medical records were "purged" following closure of the institution. The extent of this "purge" was the object of much debate before me and will be discussed further in this decision.

Claimant readily admits that he had an operation which normally does not necessitate any blood transfusion but for reasons which he cannot fully explain, he would have been transfused while he was under the effects of anesthesia.

Certain that he had received a blood transfusion, he wrote on October 15, 1999 to the Reddy Memorial Hospital asking for a copy of his medical file. The written reply, dated October 19, 1999, signed by the medical records librarian at the Reddy Memorial said:

" In reply to your letter October 15th, 1999 concerning your request from your medical files from the Reddy Memorial Hospital, please note that the records concerning all blood products that were administrated to you are destroyed, following the closure of the hospital in January, 1997." (the underlines are my own)

Claimant communicated on a few other occasions with the Hospital to obtain further information and finally presented a claim as a primarily infected person. In his claim, he alleges having received one transfusion between January 1986 and July 1990. The claim was accompanied by the usual forms, i.e. TRAN 3 where claimant declares under oath that to the best of his knowledge, he was not infected by Hepatitis C prior to January 1, 1986, and that he had never used non-prescription intravenous drugs – and TRAN 2 where the treating physician indicated (at section F, question 1) that he knew of no risk factors other than the class–period transfusion.

The claim was accompanied by a Solemn Declaration, signed in Montreal on October 25, 1999, before a Notary, by J. ., a friend of claimant, which reads as follows:

"I, the undersigned, J. ., nurse, residing at …, …, Ottawa, (Ontario) do depose and say:

1. I am a friend of Mister ( ), residing at …, #…, Montreal (Quebec)…;

2. I was visiting him at the Reddy Memorial Hospital in Montreal, on April 28, 1987;

3. I saw Mister ( ) receive a blood transfusion at the said Reddy Memorial Hospital on said date of April 28, 1987;

4. That all the facts contained in the present Affidavit are true and correct to the best of my knowledge."

( the name of the affiant is withheld in the present decision to protect the identity of the claimant)

Despite this affidavit, the claim was denied and I must now render a decision on the appeal filed by the primarily infected person.

Article 3.01 of the Plan reads as follows:

"(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, Canadian Blood Services or Hema-Québec records demonstrating that the claimant received a Blood transfusion in Canada during the Class Period;"

If proof can not be adduced as described in 3.01(1)(a), claimant may present evidence independent of his or her personal recollection establishing, on a balance of probabilities, that he or she received a blood transfusion. Article 3.01(2) reads as follows:

"(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 underlines are my own)

It is important to note that the present case is not one where the records of the hospital where claimant was treated are silent on whether he received a transfusion or not, but rather where such records have been purged or destroyed.

When seeking information about his records and about the transfusion which he believed he had received, claimant was first told, as mentioned above, that "the records concerning all blood products that were administrated to you are destroyed" (letter signed by the medical records librarian, October 19, 1999, filed before me as exhibit R‑3).

The same medical records librarian at the Reddy Memorial sent other letters or subsequently gave other versions significantly different from that original one.

" the records of the above mentioned patient have been destroyed…the blood bank records are also destroyed. It is to be noted that the blood bank sheets (transfusions) have been kept in the chart when purged. No sheet has been kept for the above mentioned patient, which means that this patient would have received no transfusion."
free translation of a letter (written in French), dated May 10, 2002;

"The blood transfusion sheets would have been kept, but not the records of the blood bank"
testimony before me in March 2004

 

I also noted in the material provided to me a note from a senior representative of the Fund, referring to a conversation she would have had in January 2001 with the hospital records librarian:

"health records/blood transfusion records have been destroyed at the Reddy Memorial Hospital – this was confirmed by myself by telephone with Mrs. (records librarian)". (page 11 of the Fund records)

Having studied the file and different letters or statements submitted by the medical records librarian over the years, I listened with great interest to her testimony before me and I must say that the information which she gave as to what had happened to the original records was far from satisfying. She explained that part of the chart, including individual transfusion sheets, were meant to be kept. She also testified that the purging of the records was done by students as a summer project. Claimant asked several questions as to how this work was done and how it had been supervised. The most favorable interpretation that I can arrive at following her testimony and her multiple versions is that her testimony has left me uncertain as to how the supervision was done, what had been purged and destroyed, and what had been kept.

I do not find in the various letters of the librarian and in her testimony clear evidence as to what was done to the charts nor do I find in what is left of the chart or in her testimony any evidence that claimant had not received a blood transfusion while at the Reddy Memorial.

Faced with the "non availability" of his records at the Reddy Memorial, claimant called as a witness Mr. J. ., a friend of the family who visited him at the hospital on April 28, 1987.

This witness who had signed an affidavit in 1999 testified that he has been a friend of the claimant and of the family for many years and explained that he had accompanied claimant's mother to the hospital as she wanted to see her son. He adds that this was the only time that he had ever seen claimant in this or any other hospital.

Mr. J. . presently resides in Ottawa and graduated in nursing in 1993. He has worked at the Ottawa General Hospital and subsequently in palliative care in a home setting. He was 39 years of age in 1987. He testified that he remembers vividly seeing claimant in what he describes as a recovery room. His friend was "semi awake". A nurse came in, hung some blood and "plugged it in". She simply would have added that "the doctor had ordered it". He would have stayed 15 or 20 minutes and left with claimant's mother. (Claimant's mother has since passed away). Mr. J. . adds that at the time of the visit he had not yet entered nursing school and he readily admits that he did not have a "trained eye", but he adds that he was familiar with blood transfusions and knew how to recognize one.

I was impressed by the testimony of this witness. Neither claimant nor Mr J. . attempted to downplay their friendship, nor did claimant pretend to remember that he had indeed received a blood transfusion. On the other hand, the friend testified clearly, calmly and without exaggeration. That claimant and Mr J. . are friends was both obvious and perfectly normal as one rarely goes to the hospital to see a total stranger!

I am very much aware of the difficult burden which is imposed upon claimant. However, if the "notwithstanding clause" of article 3.01(2) is to have some sense and some possible application, one must be able at some stage and with some element of proof to meet this threshold. We are not dealing here with a case of a negative traceback, but rather with the loss of medical records, totally without any fault on the part of claimant.

I accept the testimony of Mr. J. . to the effect that he remembers that his friend, the claimant in the present instance, received a blood transfusion in 1987.

One can speculate as to other potential sources or other explanations for how claimant may have contracted HCV, but little information was presented before me thereon and I must take into consideration the declarations made in TRAN 2 and TRAN 3. I have no reason to believe that claimant had a lifestyle or a character such as to create additional risk factors. Conversely, no witness was heard offering a more plausible explanation to that of a 1987 blood transfusion. I am very much aware that in 10 or 15 per cent of the cases, the actual source of HCV is not clearly established. I do not see however in that grim statistic an element of proof sufficient to prevent claimant from meeting, under some very special circumstances, the burden which is his under article 3.01(2).

I have studied with great care several decisions where similar questions, albeit with somewhat different facts, were discussed, and I share referee Shelly L. Miller's, Q.C. comments (decision 96, July 23, 2003) that accepting the evidence as I have in this case puts a nearly impossible burden upon the Administrator to undertake a traceback of blood for which no record can ever be found. Nevertheless, such is the effect of the "notwithstanding clause" of article 3.01(2). Like referee Miller, I conclude however that this case must be confined to its own very peculiar facts.

Based on the proof adduced before me, the Affidavit of J . and his testimony, I am satisfied that on the balance of probabilities, claimant did receive a blood transfusion during his brief stay at the Reddy Memorial Hospital on April 28, 1987.

I grant this request for appeal, with costs.

No direct proof was presented before me as to costs. However, seeing that claimant was not represented by counsel, but knowing the work and the documentation he had obtained and prepared, I deem it appropriate to allow costs of $200. for hearing-related expenses.

Montreal, June 22, 2004

JACQUES NOLS

Referee