|
Appeals : Arbitrator
Decisions : #108 - October 7, 2003
D E C I S I O N
The Claimant received three (3) blood transfusions in 1987
during an emergency operative treatment.
A few years later, in 1992, his doctors confirmed his HCV
infection and therefore, the Claimant submitted a Claim, which
was rejected by the Fund's Administrator. The rejection was
based on the fact that he failed to prove that his initial
HCV infection had occurred after the 1987 transfusion dates.
The Claimant is therefore appealing such a decision.
I had the opportunity to hear the Claimant at a Hearing which
took place in Montreal on September 18, 2003, to examine the
documentation forwarded to me by the Administrator and the
Fund Counsels, and to hear the arguments submitted by both
Parties.
The fact that the Claimant received three (3) transfusions
in 1987 and that he is HCV infected is not disputed. However,
it is determined that the Héma-Québec Traceback
had led to the identification of each of the donors who had
been tested. Each of the donors proved to be negative. The
Claimant questions the results of these tests, in particular
concerning one of the donors, whom I will identify for the
purposes of this Hearing as number "14", arguing
that the label concerning donor 14, attached to the hospital
file, had been corrected and that there was confusion regarding
the dates.
I listened to the Claimant with a great deal of attention
and I am saddened to see the extent of the damages caused
to him by the HCV infection. I also listened to the Fund Administrator's
Representative, Mr. Antonin Fortier, and as mentioned above,
reviewed the documentation that has been forwarded to me,
including a letter signed by Héma-Québec's Medical
Director (Sainte-Foy), Dr. Marc Germain.
The Claimant sees in his hospital file and in Héma-Québec's
documentation matter of confusion and suspicion. I do not
agree with his point of view. He received three (3) transfused
units on January 16, 1987 and each of the labels clearly identifies
the name of the patient (the Claimant), his file number at
the Hospital Center, the bag number, the blood type, the transfusion
date and time. The only correction made to one of the labels
does not seem significant to me, the nurse or the technician
having first indicated on label 14 the blood type in the "RH"
box. Either the time of the correction or the correction itself
that was made by the nurse or the technician, or even by someone
else after the transfusion, seems unimportant in our case,
as the number on the bag is well identified, and that this
number eventually allowed Héma-Québec to do
the required tests.
The three (3) donors were effectively traced back, the first
one when he made another blood donation in 1992, and the two
others in 2002. All three proved to be negative.
Article 3.04(1) of the Transfused HCV Plan stipulates that
if the results of a Traceback Procedure show that none of
the donors is or was HCV antibody positive, the Administrator
must reject the Claim of such HCV Infected Person.
This is clearly our case and the Administrator had to reject
the Claim of this Claimant.
Article 3.04(2) allows the Claimant, notwithstanding Article
3.04(1), to prove that he was HCV infected for the first time
by a Blood transfusion, and notwithstanding the results of
the Traceback Procedure. In this case, the Claimant did not
try to submit such a proof, stating only that he had no confidence
in label 14 and that he had no confidence in the Héma-Québec's
tests. The Claimant did not remove the burden of proof required
by Article 3.04(2).
The evidence submitted to me forces me to conclude that the
Administrator's decision was well founded and that he had
to reject the Claimant's request for compensation.
To come to this conclusion, I chose not to discuss the fact
that the plaintiff had a history of several risk factors such
as the use of intravenous drugs at least once without medical
supervision and the presence of tattoos. These factors can
only confirm the fact that the Claimant was not successful
in convincing me of the merits of his position.
I confirm the Fund Administrator's Decision and reject the
Request for Arbitration.
Montreal, October 7, 2003
(Signature) JACQUES NOLS
Jacques Nols
Arbitrator
|
