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Appeals : Arbitrator
Decisions : #23 - November 23th, 2001
D E C I S I O N
1. The Claimant applied for compensation as a Primarily-Infected
Person pursuant to the Transfused HCV Plan (the "Plan").
2. By letter dated March 19, 2001, the Administrator denied
the claim on the basis that the Claimant had not provided
sufficient evidence that he received blood as defined in the
Plan ("Blood") during the Class Period.
3. The Claimant appealed the Administrator's denial of the
claim by way of arbitration.
4. The Claimant requested an oral hearing which was held
on November 14, 2001.
5. Undisputed relevant facts include the following:
(a) During the Class Period, the Claimant suffered a myocardial
infarction (heart attack) resulting in admission to hospital
and treatment. Treatment included administration of a drug
called streptokinase intravenously.
(b) Streptokinase is an enzyme used to dissolve blood clots.
Streptokinase is chemically suspended in albumin, a human
blood derivative obtained from plasma, for injection purposes.
(c) The Claimant is infected with Hepatitis C which has
manifested itself requiring medical treatment.
6. The Claimant and his wife, his authorized representative,
honestly believe that the Claimant became infected with the
Hepatitis C virus when the Claimant received streptokinase
at the time he was treated in hospital for his heart attack.
7. The Claimant's Treating Physician indicated in a Treating
Physician Form dated July 16, 2000, referred to as a TRAN
2 Form, that the Claimant received Blood and specifically
blood products, which are listed as part of the definition
of Blood, during the Class Period. However, the record indicates
that Ms. Carol Miller, a nurse at the Hepatitis C Claim Center,
obtained clarification from the Treating Physician on May
22, 2001, that his answer was based on information received
from the Claimant and not from medical documents. This conversation
with the Treating Physician was confirmed in a memorandum
dated May 22, 2001 prepared by Ms. Miller. The Claimant had
no objection to the contents of the memorandum.
8. Fund Counsel relied upon the expert evidence of Dr. G.H.
Growe, Division Head, Hematopathology and Medical Director
of the Blood Transfusion Service at Vancouver General Hospital
and Health Sciences Centre ("VGH"). Dr. Growe's
written opinions are contained in two letters dated July 6
and August 21, 2001 respectively. Dr. Growe also appeared
at the arbitration hearing at the request of the Claimant
for questioning.
9. It was agreed that the threshold question to determine
the Claimant's eligibility for compensation under the Plan
was whether or not he received Blood, specifically a blood
product.
10. Blood is defined in the Plan (Article 1.01) as follows:
"Blood" means whole blood and the following
blood products: packed red cells, platelets, plasma
(fresh frozen and banked) and white blood cells. Blood
does not include Albumin 5%, Albumin 25%, Factor VIII
Porcine Factor VIII, Factor IX, Factor VII, Cytomegalovirus
Immune Globulin, Hepatitis B Immune Globulin, Rh Immune
Globulin, Varicella Zoster Immune Globulin, Immune Serum
Globulin, (FEIBA) FEVIII Inhibitor Bypassing Activity, Autoplex
(Activate Prothrombin Complex), Tetanus Immune Globulin,
Intravenous Immune Globulin (IVIG) and Antithrombin III
(ATIII). (Emphasis Added)
11. At the arbitration hearing the Claimant and his wife
asked questions of Dr. Growe. The Claimant consented to his
wife continuing to act as his authorized representative and
Fund Counsel did not oppose. Dr. Growe was tendered as a hematologist
and transfusion medicine expert entitled to give expert medical
opinion evidence. Dr. Growe has considerable experience within
his speciality and he was so qualified and accepted as an
expert. He has been a clinical professor at the Faculty of
Medicine, University of British Columbia, since July 1, 1983.
He has been on the active staff of VGH since 1969 and Director
of the Blood Bank, Department of Pathology, at VGH since 1970.
These are only some of his impressive credentials.
12. Dr. Growe's evidence included the following: Albumin
is a pooled product obtained from human plasma as a sub-fraction.
It is therefore derived from human blood. There are generally
between 100 to 2000 donors in a large pool from which albumin
is derived. Because of this pooling procedure, it is not possible
to track specific donors should there happen to have been
an infected one. According to the manufacturer of streptokinase
(Streptase-TM), 100 milligrams (one-tenth of a gram) of albumin
is used as a stabilizer for each 6.5 millilitre vial. Albumin
itself is commonly used for transfusion purposes for people
in shock or with low blood volumes. For transfusion purposes
a standard dosage of albumin is either a 5.0% or a 25.0% solution,
meaning that there is either 5 grams/100 mL or 25 grams/100
mL. In the usual case, there is 25 grams of albumin total
in each intravenous administration. These doses contain significantly
more albumin than is contained in streptokinase. Streptokinase
is not a human blood product (it is an enzyme) which must
be chemically suspended in albumin in order to keep it in
the liquid state for injection purposes. Streptokinase is
used not only for treatment of people suffering heart attacks
but also for people who may have blood clots in other parts
of the body or who have suffered stokes. Streptokinase is
a clot dissolving agent. The hospital record at the time of
the Claimant's heart attack indicates that the Claimant was
started on low dose administration of streptokinase, which
would contain only 100 milligrams or 0.1 grams of albumin.
The Claimant therefore would have received a very small amount
of albumin compared to standard doses of albumin for transfusion
purposes. Until 1990 no blood was tested in Canada for the
Hepatitis C virus so it is possible that blood products could
have contained the virus. On questioning, Dr. Growe admitted
that it is not absolutely impossible that albumin may have
been infected with the virus and the amount of albumin administered
may be irrelevant; however, albumin is a blood product that
is not known to be associated with Hepatitis C or with any
other transmitted virus. Dr. Growe knows of no cases himself
and was unaware of any cases in the scientific literature
linking the administration of albumin to people with HCV.
He also said that there is no known association in the literature
connecting albumin to Hepatitis B or HIV. To Dr. Growe's knowledge,
no patients who have received large volumes of albumin via
transfusion have developed hepatitis. He believes that since
albumin and streptokinase have been used and are sold all
over Canada if there were outbreaks of viruses in the patients
who have been administered these products, such outbreaks
would have come to public attention or been the cause of investigation.
Dr. Growe could not rule out categorically that the Claimant
was infected with HCV when he received streptokinase but his
evidence is that it is highly unlikely.
13. Dr. Growe's evidence established that during treatment
of the Claimant for his heart attack he received a much lower
amount of albumin than Albumin 5% or Albumin 25% both of which
are excluded from the definition of Blood.
14. Turning to the threshold question, since the definition
of Blood excludes blood products referred to as Albumin 5%
and Albumin 25% and since the evidence is that the Claimant
must have received a much smaller dosage or quantity of albumin,
the Claimant cannot succeed in this appeal. At the hearing,
the Claimant conceded that unless I, as an arbitrator, had
the power to rewrite the definition of Blood, he did not receive
Blood within the Class Period. I assured him I had no authority
to rewrite the Plan nor does the Administrator have any discretion
to allow compensation where the required proof of entitlement
does not exist.
15. I confirm that the Administrator's decision was correct.
The Administrator properly determined that the Claimant did
not provide sufficient evidence that he received Blood during
the Class Period. The appeal is dismissed.
Dated at Vancouver, British Columbia, this 23rd day of November,
2001.
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Vincent R.K. Orchard,
Arbitrator
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