logo
Hepatitis C - Class Actions Settlement
HomeSearchContact UsFrançaisPrivacy

Claimants:
Essential Information
Claimants:
Additional Information
Claimants:
Loss of Income / Loss of Support / Loss of Services
Periodic Re-Assessment by the Courts
Appeals
Documents
Forms
Contacts and Links
Annual Reports
Administrator


Appeals: Confirmed Referee Decisions : #113 - November 5, 2003

Decision of the Court having jurisdiction in the Class Action attached - February 23, 2004

D E C I S I O N

1. This matter concerns a request for review by Referee of a denial by the Administrator of a Claim for compensation under the Transfused HCV Plan (the "Plan") made by the Claimant as an HCV Personal Representative pertaining to his father (the "Deceased") who died on June 16, 1998 in British Columbia. The Administrator denied the Claim for reasons set forth in a letter dated June 19, 2003 (claim file pp 3 - 4), namely that the Claim did not meet the criteria established under Article 3.05 (1)(a) of the Plan which requires proof that HCV caused the death of the Primarily-Infected Person.

2. The parties waived an in-person hearing and requested my decision on the basis of the written record, which included all documentation submitted by the Claimant in support of the Claim, the claim file provided by the Administrator and written submissions by the Claimant and Fund Counsel. I have considered the entire record and all submissions carefully.

3. There is no dispute that the Deceased met the definition of a Primarily-Infected Person under the Plan in that he received Blood through transfusions in Canada in the Class Period and one of the donors tested positive for HCV.

4. However, according to the Deceased's treating physician who had treated him for nine years prior to his death, he "Died of congestive heart failure/secondary to heart valve disease & COPD" (the Treating Physician Form (TRAN2), dated October 21, 2002 claim file, pp. 44 - 49). COPD refers to chronic obstructive pulmonary disease.

5. The Claimant candidly admits the Deceased did not die from HCV. The Request for Review dated June 25, 2003 completed by the Claimant states the following reasons for the review:
My father was infected with HCV through a blood transfussion (sic) while in Royal
Jubilee Hospital. This infection did not help him recover from heart surgery. In fact, it
lessoned (sic) his chances of recovery, as well as, made his last few years of life
miserable. (claim file, p. 6)

6. The Claimant elaborated on his argument in a letter dated July 10, 2003. The Claimant submits that after his father contracted HCV his health because worse, his quality of life deteriorated and infection with HCV was a contributing factor towards his death.

7. Article 3.05 of the Plan establishes the proof required for a Claim made by an HCV Personal Representatives of a Primarily-Infected Person. Article 3.05(1)(a) requires "proof that the death of the HCV Infected Person was caused by his or her infection with HCV". That proof is an essential criterion of the claim. In my opinion, such proof is required to be established on a balance of probabilities, keeping in mind the pragmatic and common sense approach discussed in such medical cases as Snell v. Farrell, [1990] 2 SCR 311 and generally in the law of torts in Athey v. Leonati, [1996] 3 SCR 458.

8. The Deceased, according to a document called Registration of Death (claim file p. 79) was born on April 9, 1917. He died at 81 years of age on June 16, 1998. The Physician's Medical Certificate of Death completed by the same general physician who complete the above-noted TRAN2 form indicated that the cause of death was stroke and other significant contributing factors were atrial fibrillation and aortic valve replacement (claims file p. 97).

9. In the TRAN2 form, the Deceased's doctor was asked specifically in question 31: "If the HCV Infected Person has died, did his or her infection with HCV materially contribute to his or her death?". In reply, the doctor, faced with a choice of ticking the yes box or the no box, checked the no box. In other words, the doctor who treated the Deceased for nine years before his death and completed the Medical Certificate of Death stated that HCV did not materially cause or contribute to the death. However, the doctor responded to the secondary question on the form: "If yes, how did the HCV Infected Person's infection with HCV materially contribute to his or her death?". The doctor has written "Not available. Died of congestive heart failure/secondary to heart valve disease & COPD." (claim file p. 48).

10. In my opinion, that the treating physician went on to give further explanation concerning the cause of death, does not assist the Claimant. Having answered "no" to question 31, the doctor was not required by the form to write additional information. In my view, the doctor was merely being helpful in his explanation. He has indicated that there is no available evidence that HCV materially caused or contributed to his patient's death. I conclude that the medical evidence is sufficiently conclusive that HCV did not materially contribute to the death of the Deceased. Unfortunately the Deceased contracted HCV in the later years of his life but the cause of his death was heart disease and not HCV. There is no evidence HCV materially contributed to his death. Therefore, there is no proof establishing that the death of the HCV Infected Person was caused by his infection with HCV as required by the Plan.

11. I find that the Administrator correctly concluded that the required proof for compensation did not exist. The wording of Article 3.05(1)(a) is quite clear. The Administrator had no alternative but to dismiss the Claim.

12. I uphold the Administrator's decision.


DATED at Vancouver, British Columbia, this 5th day of November 2003.

"Vincent R.K. Orchard"

_____________________________
Vincent R.K. Orchard, Referee

 

JUDICIAL DECISION

Judge Pitfield's decision - February 23, 2004


 

Disclaimer