Appeals: Confirmed Referee Decisions : #151 - June 25, 2004

Decision of the Court having jurisdiction in the Class Action attached - December 15, 2004

D E C I S I O N

The Claimant submitted a claim as a Primarily Infected Person under the Transfused HCV Plan.

In a letter dated August 29, 2002, the Class Action Administrator rejected the claim and advised the Claimant that she had not provided sufficient proof to the effect that she had received blood during the Class Action Period.

The Claimant submitted a Request for Review asking for a review of the Administrator's decision by a Referee. It is as such that I am examining this Request for Review.

The Claimant asked for an oral hearing and a first date was selected for the hearing, i.e., February 18, 2003. The Claimant's Legal Counsel having asked for a deferral, and having announced that several witnesses would testify (some of whom would have to testify through the help of an interpreter), two (2) days were scheduled for such a hearing, i.e. on November 4 and 5, 2003. The Claimant, then represented by a new Counsel, asked for a new deferral, and the hearing of this review finally took place in Montreal on February 23 and 24, 2004.

I had deemed appropriate, before the Hearing, to hold a conference call with the Claimant's Counsel and Fund Legal Counsel in the hope of limiting the debate, but nevertheless, ten (10) witnesses had to testify, seven (7) of which were on behalf of the Claimant.

In the Request for Review, the Claimant said she wished that the Administrator's decision be reviewed because the St. Mary's Hospital file had been tampered with, and some documents had been destroyed. She announced that she would request a handwriting expert « to examine the medical file and a testimonial proof to establish why and how the medical file had been tampered with». The Claimant's Counsel chose not to call on a witness regarding the handwriting expertise, but lengthy evidence was submitted for the other elements of the Request for Review.

I must analyze these testimonies and the submitted documents to see if the Claimant could have satisfied the burden of proof according to Section 3.01(2) of the Plan.

The Claimant was hospitalized, in April 1988, at the St. Mary's Hospital Center, in Montreal, to give birth to her second child. Due to a puerperal toxemia problem and due to what is described on file as "fetal distress", a Cesarean section was performed. The child, a boy, was born during the night of April 20 to 21, 1988, around 1:30 AM. The obstetrics' file indicates a loss of 900 cc of blood during the Cesarean section.

The St. Mary's Hospital Center's file does not indicate that the Claimant received any transfusion.

The Claimant testified at length on various topics. Concerning her stay at the hospital center, I note that she told us that she woke up after her childbirth by Caesarean around 3:00 AM during the night, and that she noticed that she was receiving a Blood transfusion.

She told us also that she had received the visit of a girl friend in the morning, then that of another girlfriend the following day, probably around noon.

She testified at length on problems that she had with a Physician who treated her in 1999 and 2000, Dr. V. who would have told her that it was time to submit a Claim to the Fund, that he had the proof that she had in fact received a transfusion, but that he would not give her access to this proof if she didn't satisfy certain conditions. The Claimant explains that these conditions were related to administrative matters related to a work accident that she had had some time earlier. Dr. V., who testified at the Fund Counsel's request, firmly and unambiguously denied that he had made threats to her or imposed conditions.

The Claimant testified at length on the circumstances of one of her visits at Dr. V., when the latter would have given her a copy of her file at the St. Mary's Hospital. However, the Claimant argues that Dr. V. would have tried to hide her something while photocopying neglectfully or erroneously what became page 273 of the file, at the bottom of which can be found the words "Hematology Report- blood bank". After having analyzed page 273, I feel that all it indicates is that the person having made the photocopy from the original, at the St. Mary's Hospital, had omitted to lift an hematology sheet before copying the following page. We know that the copy of the file had been transmitted by the St. Mary's Hospital Center to Dr. V. in April 2000, and that he had never had in his possession the original file. If there was a photocopying problem, such a problem didn't come from Dr. V., but rather from the hospital center.

In all events, this famous page 273 question does not appear significant to me in this case. All applicable elements on the new copy of the Claimant's file at St. Mary's (Exhibit F-4) are identical to the Claimant's original copy, except for the famous page 273 which has now been copied, as it should be, on separate sheets, none of which indicate any transfusion.

The Claimant denied that it is her signature that appears on pages 38 (correction to the Tran 3 Form), 39 (Tran 4, authorization to start the Traceback Procedure), 41 (Gen 5, authorization to reveal information), 42 (Gen 6, authorization to reveal information) and 67 (letter dated August 30, 2000 addressed to whom it may concern at the St. Mary's Hospital), even adding at the hearing that this last signature was illegible; however, she recognizes readily that it his her signature on page 45 (which is a file summary requested by the Everett Clinic - St-Michel Subway dated June 21, 2000.

In my view, the signature on page 45 seems to be identical to the one appearing on pages 29, 38, 39, 41 and 42, or again on pages 37, 68, 71, 109 or 110 of the file. In my view, page 37 seems to be significant, because it is identical to all others and was certified by someone who signed as a Commissioner of Oath, and I quote its contents:

"I certify that the Statement Form was read to the Declarant in my presence, that the Declarant seemed to have understood, and that the Declarant has signed the statement or has affixed his mark in my presence."

The declaring party is identified on the previous page (page 36 of the Claim Center File) as being the Claimant related to this Request for Review. The Commissioner of Oaths has not been called to testify before me.

Also, on this question of signature, the Claimant's son, who is 20 years old today, recognized his mother's signature on one document (Exhibit F-1), that we know is dated April 2000 and again, such a signature seems to me to be similar to all others mentioned above.

While conscious of language difficulties and the fact that a testimony translated from Vietnamese to French can lose spontaneity and some nuances, and conscious as I am that there can be some cultural differences, the Claimant's testimony appeared to me full of exaggerations, of half-truths and statements that have remained uncorroborated or that have been simply contradicted.

This brings me to Exhibit D-1 that has been submitted to us as being a log book (and its translation from Vietnamese to French) written by the Claimant firstly on April 26, 1988 (i.e. 5 days after the birth), then, completed in May 1988. The translation that has been made of it refers in fact to a loss of about 2 liters of blood and of a blood transfusion performed at 1:40 AM on April 21, 1988 and April 22, 1988.

I read with great care the French version that has been submitted to us of what is called the Claimant's log book and the officiating interpreter at the time of the hearing gave us a new oral interpretation. This document, that would not have the evidentiary weight of an authentic nor semi-authentic writing, must be analyzed in light of all other documents and all other testimonies. Unfortunately, it is presented in a context where the Claimant's testimony is far from being satisfactory and convincing to me, and where facts recorded in the hospital file (no evidence of transfusion, blood loss of 900 cc, etc.) contradict what is written in Exhibit D-1. Explanations regarding when this document was prepared and in what context did not seem to me very convincing, and I do not accept this document as having more evidentiary weight than the Claimant's testimony itself.

The St. Mary’s file seems to me to be complete and gives no indication of a blood transfusion. Besides, it is impossible for me not to stress the fact that I find, in the nursing staff notes, from the night of April 21 st up to the end of the day on April 22 nd, some 22 notes to the effect that the Claimant received first, 2 solutes, then one single solute. It seems important to me to note that in the first hours after the birth, the Claimant received, according to the hospital file, a solute in each arm (note of 3:00, 5:00, 7:10 AM; there is also mention of 2 solutes in a note of April 21 st, at 3 PM).

That the nursing staff had taken the time and care to make 22 well detailed notes concerning the solutes, but written nothing concerning one or even two blood transfusions that the Claimant pretends having received would go beyond understanding.

Section 3.01(2) tells us that if a Claimant cannot comply with the provisions of Section 3.01(1)a (i.e. establish through medical, clinical, laboratory, hospital files… demonstrating that he received a Blood transfusion during the Class Period), he may present corroborating evidence establishing on a balance of probabilities that he received a Blood transfusion during the Class Period. Section 3.01(2) adds that this evidence must be independent of the personal recollection of the claimant or any person who is a Family Member of the claimant.

Many other people therefore testified for the Claimant:

* Dr. Ly (Claimant’s treating physician)

He confirmed that to his knowledge, the Claimant was not making use of non-prescription intravenous drugs and that the other members of the Claimant’s family were HCV negative. He brought little information as to the possible source of the contamination in the case of the Claimant.

* Claimant’s two girlfriends

Each testified in turn to tell their recollections of their respective visit to the Claimant during her stay at the hospital center.

The first of these ladies told us having visited the Claimant on April 21st and 22nd, most probably early in the morning (around 8AM, she says). She states having noticed, on April 21, a bag containing serum and a bag containing blood.

Such being the case, as mentioned above, the file notes for 7:10 AM of April 21 st read as follows:

"… IV (R) arm 1000cc 2/3 – 1/3 c 40u Syntocinon infusing @ 50 cc has 800 cc TBA. IV (L) arm M/L 1000 2/3 – 1/3 all TBA. IV 1000 2/3 – ¼ c 10g MgSO4 has 600 cc TBA"

I do not have to comment on the testimony of the first friend except by saying that I prefer the contemporary notes prepared by the nurses to a testimony which is otherwise rather vague 16 years after the fact.

* As for the second friend, she states having visited sometime around 8:00 AM, sometime in the afternoon, either on April 21 st or April 22 nd. She says that she remembers that the Claimant was getting during her visit only one bag, adding vaguely that she saw a reddish color mixed in with some white. I consider that this witness, without any doubt of good faith, has not given us anything allowing us to establish that the Claimant was receiving a transfusion.

The Claimant also had her ex-spouse testify and he testified in a colorful fashion and with good nature.

He explains that his spouse had a first transfusion at 1:40 AM (for a period of about 3 hours) during the night of April 21, then another bag in the morning of April 22. He also explains that the blood transfusions and a solute were both given in the left arm of the Claimant. He continues by describing the visit of the two (2) girl friends of the Claimant, indicating that the timing of their visit was incompatible with their testimony.

I interpret the restriction imposed by the ‘independent of the personal recollection…of any person who is a Family Member’ of Section 3.01(2) as meaning that if only the family members testify, this in itself does not constitute sufficient and acceptable evidence. On the other hand, if such independent evidence exists, this evidence will be added to the testimony of the family members, thereby adding to the weight of these testimonies. Here, I consider on the one hand that there is no conclusive evidence from independent persons, and on the other hand, that the Claimant’s spouse’s testimony seemed incompatible with the hospital file and the other testimonies that he was trying to corroborate.

The Claimant also had her two sons testify.

The eldest son, now twenty years old (20), came to testify about the visits when he accompanied his mother to Dr. V’s (office), in January, April and June 2000. He explains that the doctor from whom the Claimant was asking a copy of her file was so mad, made the copies so quickly that several sheets piled up one on top of the others, thus trying, I presume, to explain the famous page 273 of the hospital file. Once again, I don’t see any significance in sheet 273, but it was referred to many times during the hearing. The explanations as suggested by the son's testimony defy all logic since only the original sheets could have piled up to produce sheet 273 (therefore, during the original photocopying at the hospital center). In any case, Dr. V’s state of mind, whether good humored or in a bad mood at the time of the Claimant's visit, do not appear to me to be relevant.

As for the youngest son’s testimony, it seems more related to his conversations with his oldest brother and father than to his real recollections. For each event, his explanations of the Claimant’s meetings with Dr. V. are disproved by Dr. V. himself, and again, this entire question does not appear to me to be relevant.

The Claimant’s treating physician, Dr. V., testified to the effect that even if he had noted in April 2000 that there wasn’t any mention of transfusions at the St. Mary's Hospital Center, he nevertheless signed the Tran 2 form in June 2000 on the basis of the Claimant’s statement, explaining that the claim was done in good faith and that it was up to the Committee to take the required decision. He denies having made some threats to the Claimant and states that he never told the Claimant that he had proof that she had been contaminated by a transfusion.

Dr. V.'s testimony seemed to me honest and unbiased.

Ms. Laviolette, the St. Mary's Hospital Center’s archivist, also testified. She confirms that in her view, the file as presently set up seems complete, that such a file was not purged by the hospital center, that there exists no indication that Dr. V. came to consult the file at the hospital center, or that he had the original documents in his possession at any time whatsoever, and finally, that the file did not contain any evidence of a transfusion. She completes her testimony by saying that ‘this is not an incomplete file’.

The Fund Counsel also had an Administrator's representative testify, Mr. Antonin Fortier, who described himself as a Hepatitis C class action claims’ evaluator. Mr. Fortier explained the claims file procedure at the Center and how the decision of the evaluation members was taken in this case. The Claimant’s lawyer raised the fact that the Administrator needed to be more open with the Claimants and motivate them, in this case, to offer evidence under Section 3.01(2). I share Me Latour’s views on this matter but I doubt that the decision would have been different even if the Claimant had submitted all the evidence before the Administrator’s final decision. With the help of various lawyers whom she consulted with during the life of this file, the Claimant knew how to present detailed evidence; unfortunately, this evidence does not in my view seem to satisfy the Section 3.01(2)'s provisions.

I examined the otherwise well detailed notes of all the testimony and reread the documents submitted by both parties and am satisfied that the Claimant did not discharge the burden of proof that she indeed had a transfusion during the Class Action Period.

I come to this conclusion in spite of the Claimant’s Counsel's hard work and his submission which was well presented. Incidentally, I must thank both the Claimant’s Counsel as well as the Fund Counsel for their preparation and help they provided in the analysis of this case.

After having examined all the evidence, I finally arrive at the conclusion that the Administrator has correctly established that the Claimant was not entitled to compensation under the Settlement Agreement. I uphold the Administrator’s decision and I reject the Request for Review.

Montreal, June 25, 2004

Jacques Nols
Referee

J U D I C I A L D E C I S I O N

Judge Morneau's Decision - December 15, 2004

SUPERIOR COURT

CANADA
PROVINCE OF QUEBEC
DISTRICT OF MONTREAL

NO: 500-06-000016-960

DATE: December 15, 2004

_________________________________________________________________________

PRESIDING JUDGE: THE HONORABLE NICOLE MORNEAU, SCJ

_________________________________________________________________________

DOMINIQUE HONHON
Petitioner
V.

ATTORNEY GENERAL OF CANADA
AND
ATTORNEY GENERAL OF QUÉBEC
AND
THE CANADIAN RED CROSS SOCIETY
Defendants

AND
CLAIMANT NO 1368
APPELLANT

_________________________________________________________________________

JUDGMENT TO REEXAMINE A REFEREE'S DECISION
1986-1990 Hepatitis C Settlement Agreement
Transfused Plan

_________________________________________________________________________

[1] The Claimant is appealing the decision of the Referee who has rejected her Request for review of the Administrator's decision to reject her claim. The latter has refused to recognize her status as a Primarily HCV Infected Person under the Transfused HCV Plan as well as her claim for compensation, pursuant to 1986-1990 Hepatitis C Settlement Agreement.

[2] Before the Court, the Fund Counsel called the Medical Record Administrator from the St Mary's Hospital Center, in Montreal. For her part, the Claimant testified through an interpreter provided by the Fund.

[3] It is important to emphasize t hat after having heard 10 witnesses, of which 7 testified on behalf of the Claimant, the Referee rejected her Request for review on the basis that there was no proof allowing him to believe that she had received the two transfusions, following which she would have been HCV infected.

[4] He did not retain the Claimant's allegations that her medical records at St Mary's Hospital had been altered and that some documents had been destroyed. Incidentally, he concluded that the Claimant had no credibility at all.

[5] B efore the undersigned judge, the Hospital's Medical Record Administrator produced documents that the Claimant has asked her to add to her file last December 2.

[6] Medical Record Administrator at the same hospital since 1979, she testified on her knowledge and her inspection of the hospital records, as she never saw any form like the one produced by the Claimant in the hospital records. She argued that there are no such similar documents or forms used at the hospital and that there also were none on the dates of the alleged Claimant's transfusions of April 21 and 22,1988.

[7] Furthermore , it is recognized that such documents produced as exhibit "Fonds-3" are pure fabrications to be used as proof of transfusion, in order to be eligible for compensation under the aforementioned Settlement.

[8] In fact, the Claimant or a person acting on her behalf used a photocopier and the charts of the two transfusions that had actually been administered to her at Hôpital Maisonneuve-Rosemont on June 9, 2001, to create or forge the false documents as exhibit "Fonds-3". The result is crude.

[9] The St Mary's Hospital letterhead was photocopied on the side of the sheet, the St-Mary's medical charts in English only in 1988, are nevertheless in French here. The technician's initials are the same. They are written by the same person's hand, at both hospitals. The written URG mention (for emergency) is also by the same person. The administered products are the same. However, the unit numbers mentioned on the medical charts that one tries to assign to St Mary's Hospital are fictitious.

[10] To this effect, the letter from Héma-Québec's Interim Vice-President, Legal Affairs addressed to the Fund Counsel, dated December 1, 2004 must be quoted:

In response to your letter of November 30, 2004, we wish to inform you that unit numbers 60[3]1875811 and 60[1]1875819 do ot correspond to unit numbers in our records. (1)

Also, please note that since 1987, the unit numbers contain 6 digits after the box ([ ]). Before, they included 5. Also, until 2000, the blood group was included in the unit number (…)

[11] In short, if one excludes the false documents created by or for the Claimant, we have to conclude that there is no proof of transfusions that the latter alleges having received in April 1988. Her appeal must therefore be rejected and the Referee's decision ratified.

ON THAT GROUND, THE COURT:

REJECTS the Claimant's appeal No.1368;

ALLOWS the Referee's decision rejecting her Request for Review, dated June 25, 2004;

ALL THIS, without costs.

ORIGINAL SIGNED BY NICOLE MORNEAU, SCJ

Me Catherine Mandeville and Me Christine Kark
MCCARTHY TÉTRAULT
Fund Counsel

Claimant No. 1368

Me Michel Savonitto, in his quality of Member of the Joint Committee,
MARCHAND MELANÇON FORGET

Hearing Date: December 8 and 9, 2004

(1) The archives of the Société canadienne de la Société canadienne (sic) de la Croix-Rouge have been transferred to Héma-Québec on April 28, 1998