Appeals : Arbitrator Decisions : #114 -November 14, 2003

D E C I S I O N

A Request for Review was submitted to me in my capacity as Arbitrator by the parents of a transfused person who died in November 1994. The request was presented pursuant to the Hepatitis C Class Action Settlement.

The Claim was denied in April 2002 by the Administrator of the 1986-1990 Hepatitis C Class Action Settlement because, in the opinion of the Administrator, there was no sufficient proof that HCV had been the cause of the infected person's death.

The original Request for Review indicated that additional documents were to be sent, but the Personal Representative of the transfused person subsequently informed the undersigned that he would rely on the documents already submitted and had no intention to submit any additional documentation. In his Request for Review or in his subsequent correspondence, the Personal Representative of the transfused person refers to what he describes as the "probabilities related to the cause of death but brings no real new information.

Therefore, I reviewed the file as prepared and found the following documents and information:

§ On the hospital summary sheet, under the main diagnosis heading:
"cerebral and ventricular haemorrhage";

§ On the form signed by the Neurosurgeon who provided care to the transfused person during his stay at the hospital centre, shortly before his death, the Attending Physician answered question 11:
Question:
If the HCV infected person died, did his HCV infection substantially contribute to his death?
Answer:
"No."

§ Answering in writing, following the parents' request for an explanation, the same Neurosurgeon wrote in February 2002:
" …the cause of Mr. ( )'s death is a meningoencephalitis haemorrhage (hémorragie cérébro-méningée) coupled with a ventricular haemorrhage."

"Therefore, one can conclude that Mr. ( ) died of a meningoencephalitis haemorrhage (hémorragie cérébro-méningée) for which the etiology is always undefined and its exact link with the Hepatitis C virus cannot be specified"

§ The file also contains a report signed by a Gastroenterologist who mentions that he has personally reviewed the complete hospitalization file concerning the Hepatitis C problem and this Physician writes in October 2002:
" Mr. ( ) has been admitted to the hospital ( ) for a cerebral haemorrhage from which he quickly died."

"Hepatitis C is not considered a cause of cerebral haemorrhage."

"In conclusion therefore, there is no evidence of a link between the presence of the Hepatitis C antibody and Mr. ( )'s death."

I have found no proof contrary to this documentation and information.

I consider that I cannot ignore Section 3.05(1)a) of the Transfused HCV Plan:

" 3.05 Claim by HCV Personal Representative of HCV Infected Person

(1) A person claiming to be the HCV Personal Representative of a HCV Infected Person who has died must deliver to the Administrator, within three years after the death of such HCV Infected Person or within two years after the Approval Date, whichever event is the last to occur, an application form prescribed by the Administrator together with:

(a) proof that the death of the HCV Infected Person was caused by his or her infection with HCV;"

Section 5.01(1) which deals with the approved HCV Personal Representatives also makes a reference to the proof required under Section 3.05.

I must conclude that the Personal Representative did not remove the burden of proof in establishing that the HCV infected person's death was caused by his HCV infection. The proof is quite different and the Administrator was right in refusing the Claim in this case.

Having reviewed all the documents and without denying in any way the problems that the transfused person has undergone as a result of his infection and especially without denying the pain that his parents may have gone through and who have now submitted this Request for Review, I must confirm the Administrator's decision and reject this Request for Review.

Montreal, November 14, 2003

(S) JACQUES NOLS

Jacques Nols
Arbitrator