Appeals : Confirmed Referee Decisions : #59 - September 18, 2002

D E C I S I O N

The review of this case required two hearing sessions, one on January 29 and one on March 11, 2002. During the hearings, besides the plaintiff, many witnesses were heard in order to clear up confusion relative to some data on file. The claimant established proof that she was HCV infected further to a diagnosis established in 1994. In addition, she established that she had received blood transfusions during as well as outside the Class Action period. For the purpose of this file, let us keep in mind that the claimant received such transfusions while she was hospitalized at the Le Gardeur Hospital in June 1987. Moreover, at the time of her testimony, she states categorically that she is free of any other known risk factor. However, the scope of this statement is qualified by Dr Delage's expert testimony. He provided some pertinent information, in particular to the effect that, according to current scientific research, more or less 20% of infection cases are of unknown causes.

This having been said, it is clear that the plaintiff is HCV infected and cannot explain its origin other than through the blood transfusions that she received.

However, regarding the 1986-1990 Settlement Agreement period, the only blood transfusions that she received occurred at the Le Gardeur Hospital in 1987. To this effect, an investigation was conducted by Héma-Quebec in order to traceback each donor of such transfusions and overall results proved out to be negative. This portion of the proof proved out to be especially painstaking, due to a certain kafuffling in the consignment of notes in the claimant's file. Indeed, close scrutiny of notes transmitted and of information consigned to the file makes it difficult to understand facts regarding the products which were really provided to the plaintiff as opposed to those which were not transfused. Erasures and inconsistencies could have led the plaintiff to believe that she had been transfused certain products without verification with the donors at the time of Héma-Quebec's investigation.

Thus, we had to hear different witnesses from Héma-Quebec's medical directorate in order to better understand the references on file and the investigation process followed in this case. Moreover, we also had to hear Mrs. Rita Tremblay, the person in charge of blood bank transfusion security at the Le Gardeur Hospital to clarify some of the ambiguousness noted on reading the file. Such testimonies helped convince the undersigned that in spite of their being mentioned in the plaintiff's file, some units had not been transfused to her at the time of her hospitalization in 1987. Furthermore, such testimonies established in a convincing way that all the units transfused to the claimant had been verified at the time of Héma-Quebec's investigation and that each of the donors tested negative, thus confirming that the infection had another origin. This proof led the Administrator of the Plans ("the Administrator") to apply Section 3.04 of the compensation program that reads as follows:

3.04 Traceback Procedure

1. Notwithstanding any other provision of this Agreement, if the results of a Traceback Procedure demonstrate that one of the donors or units of Blood received by a HCV-Infected Person or Opted-Out HCV Infected Person before 1 January 1986 is or was HCV antibody positive or that none of the donors or units of Blood received by a Primarily-Infected Person or Opted-Out Primarily Infected Person during the Class Period is or was HCV antibody positive, subject to the provisions of Section 3.04(2), the Administrator must reject the Claim of such HCV Infected Person and all Claims pertaining to such HCV Infected Person or Opted-Out HCV Infected Person including Claims of Secondarily-Infected Persons, HCV Personal Representatives, Dependants and Family Members.

2. A claimant may prove that the relevant Primarily-Infected Person or Opted-Out Primarily-Infected Person was infected, for the first time, with HCV by a Blood transfusion received in Canada during the Class Period or that the relevant Secondarily-Infected Person or Secondarily-Infected Person who opted out of the Class Action in which he or she would otherwise be a Class Member was infected for the first time with HCV by his or her Spouse who is a Primarily-Infected Person or Opted-Out Primarily-Infected Person or Parent who is a HCV Infected Person or Opted-Out HCV Person, notwithstanding the results of the Traceback Procedure. For greater certainty, the costs of obtaining evidence to refute the results of a Traceback Procedure must be paid by the claimant unless otherwise ordered by a Referee, Arbitrator or Court.

It is the opinion of the undersigned that while recognizing the plaintiff's incomprehension regarding the confusion noted in her file, it remains nonetheless that having obtained required clarifications through testimonies, the Administrator's decision made on May 10, 2001 proved out to be founded and consequently, this review must be rejected.

This having been said, I do hope that in this matter, the two hearing sessions will have allowed the claimant to better understand what really happened at the time of her medical care episode at the Le Gardeur Hospital in 1987, while deploring the consignment of notes to file as provided by the establishment, her treating physician as well as Héma-Quebec, which was certainly the source of much confusion until the hearing sessions in this case.

Montreal, September 18, 2002,

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Martin Hébert, Referee