IN
THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | HCV Settlement Agreement Claim #15930, |
| 2010 BCSC 917 |
Date:
20100629
Docket: C965349
Registry:
Vancouver
In
the Matter of the HCV 1986-1990
Transfused
Settlement Agreement
Re
Claim No. 15930
(Proceeding
under the Class Proceedings Act, R.S.B.C. 1996, c. 50)
Before:
The Honourable Mr. Justice Pitfield
Reasons for Judgment
Counsel for the Applicant: | Self-Represented |
Counsel for the Defendants: | William |
Written Submissions Received: | May |
Place and Date of Judgment: | Vancouver, |
Introduction
[1]
The Claimant is the Executor of his deceased sons estate. The Claimant
opposes confirmation of a referees decision made pursuant to the 1986-1990
Transfused HCV Settlement Agreement which upheld the administrators
determination that the cost of a transplant procedure and out-of-pocket
expenses incurred by the deceased in respect of treatment for Hepatitis C would
not be reimbursed.
[2]
The Claimant says that the referee misapprehended the evidence and erred
in her interpretation of the provisions of the Settlement Agreement pertaining
to the reimbursement of out-of-country procedure costs and out-of-pocket
expenses.
[3]
I have reviewed the material submitted by Fund Counsel, the referees
reasons for decision, and the Claimants detailed and thorough submissions in
relation to the errors alleged to have been made. For the reasons that follow,
I have concluded that the referees decision should be confirmed.
Factual Background
[4]
In 1988, the deceased, then 19, was injured in a motor vehicle accident.
He suffered serious orthopaedic and head injuries. In the course of treatment
he received one or more blood transfusions by which means he was infected with
Hepatitis C. The infection was not diagnosed until 2002. He applied for
benefits under the Settlement Agreement and his application was approved.
[5]
The deceased developed cirrhosis of the liver and by 2005, he had
end-stage liver disease. He was advised by a medical practitioner to abstain
from the consumption of alcohol on which he had become dependent subsequent to
the accident. He was assessed by the B.C. Transplant Society as a potential
liver transplant recipient. In the course of the assessment he was advised of
the Societys alcohol abstinence requirements. He found he was unable to
abstain from the consumption of alcohol as required and he failed to qualify as
a transplant candidate as a result.
[6]
The deceased was subsequently assessed by a clinic in the United States.
He was advised that abstinence from the consumption of alcohol for a period of
six months was a pre-condition to a liver transplant, and that residents of the
United States would be given precedence over foreigners.
[7]
In the late spring of 2007, the deceased travelled to China where he
received a transplant on September 11. He returned to Vancouver on October 10. He
was admitted to hospital on October 11, treated for various aspects of his
disease, and released. He returned to the hospital on December 27. Tests
performed at the time indicated that liver function was abnormal. The deceased
died on January 10, 2008 of a fungal infection likely contracted in China.
[8]
The Claimant applied for reimbursement of the costs incurred for
treatment in China in reliance upon Articles 4.06 and 4.07 of the Settlement
Agreement:
4.06 An approved HCV Infected Person who delivers to the
Administrator evidence satisfactory to the Administrator that he or she has
incurred or will incur costs for generally accepted treatment and medication
due to his or her HCV infections which are not recoverable by or on behalf of
the claimant under any public or private health care plan is entitled to be
reimbursed for all reasonable past or present or future costs so incurred to
the extent that such costs are not costs of care or compensation for loss of
services in the home provided.
(a) the
costs were incurred on the recommendation of the claimants physician; and
(b) if the
costs are incurred outside Canada, the amount of compensation cannot exceed the
lesser of the amount of compensation payable if the costs had been incurred in
the Province or Territory where the claimant resides or is deemed to reside and
the actual costs.
4.07 An approved HCV Infected Person who delivers to the
Administrator evidence satisfactory to the Administrator that he or she has
incurred or will incur out-of-pocket expenses due to his or her HCV infection
that are not recoverable by or on behalf of the claimant under any public or
private health care plan is entitled to be reimbursed for all reasonable costs
so incurred provided:
(a) out-of-pocket
expenses will include (i) expenses for travel, hotels, meals, telephone and
other similar expenses attributable to seeking medical advice or generally accepted
medication or treatment due to his or her HCV infection and (ii) medical
expenses incurred in establishing a Claim; and
(b) the amount of the expenses
cannot exceed the amount therefor in the guidelines in the Regulations issued
under the Financial Administration Act (Canada) from time to time.
[9]
On September 15, 2008, the administrator of the Settlement Agreement
advised that reimbursement would not be made because:
1. No
recommendation had been obtained from a treating physician to the effect that the
transplant had to take place out of the country; and
2. The Settlement
Agreement did not permit the administrator to reimburse that part of the costs
that were covered by a public or private health care plan.
[10]
In respect of the second point, the administrator observed that
provincial Medical Services Plan staff had declined to consider reimbursement
because:
[the] appropriate standard of
care (liver transplant services) was available in British Columbia and
elsewhere in Canada and the [Transplant Society] did assess [the deceased] as a
candidate for a liver transplant, however, [the Transplant Society]
subsequently refused to put [the deceased] on the transplant waitlist due to
the results of the assessment.
[11]
The Claimant sought a review of the decision by a referee as permitted
by the Settlement Agreement. An oral hearing was conducted on April 15, 200. The
referees decision upholding the administrators determination was released on October
20, 2009.
The Referees Decision
[12]
The referee considered evidence submitted by the Claimant from Dr. Yoshida,
a gastroenterologist to whom the deceased had been referred, and Dr. Lichtenstein,
the deceaseds family doctor who had become such in early 2007.
[13]
From the evidence of the gastroenterologist, the referee concluded that
a liver transplant was a generally accepted treatment for Hepatitis C. The
cause of the deceaseds death was not the liver transplant but an unusual
fungal infection likely contracted in China. The evidence, both in the form of
affidavits and testimony, led the referee to conclude that the
gastroenterologist had not recommended that the deceased undergo a transplant
procedure in China, although the doctor testified that he was not opposed to the
deceased going to China for that purpose and would not say no, should he want
to go.
[14]
I see no basis on which to interfere with the referees conclusion that Dr. Yoshidas
discussions with the deceased cannot be construed as, and did not amount to, a recommendation
for purposes of Article 4.06 of the Settlement Agreement.
[15]
The referee reviewed Dr. Lichtensteins evidence and, in particular, her
evidence that she did not tell the deceased to go to China for a transplant and
it was not an idea she recommended to him. She agreed that she told the
deceased that if he had the means, he should go to China for a transplant as he
had nothing to lose.
[16]
The referee summarized her view of the evidence in the following terms:
Having heard the evidence of both Drs. Yoshida and
Lichtenstein, both of them seemed uncomfortable with the question of whether
they recommended the liver transplant in China. They both indicated that there
was no other choice for the deceased, but that it is not the same thing as a
recommendation on their part. In my opinion, the evidence of Drs. Yoshida and
Lichtenstein falls short of establishing that the costs of the liver transplant
in China were incurred on the recommendation of the claimants treating
physician. Dr. Lichtenstein specifically said that she did not recommend the
transplant as the patient had already made the decision to have it in China. Dr.
Yoshida similarly said he would not have said no to the decision, but again,
this, in my opinion, falls short of a recommendation.
I therefore conclude that the
costs of the liver transplant in this case were not incurred on the
recommendation of either Drs. Lichtenstein of Yoshida.
[17]
The conclusion reached by the referee in relation to the question of
whether a recommendation had been made by either the gastroenterologist or the
family physician was appropriate given all of the evidence that was adduced in
the proceeding before her. It follows that the claim for reimbursement of the
costs of the procedure must fail because the condition prescribed by Article
4.06(a) of the Settlement Agreement has not been satisfied.
[18]
The referee also considered that the question of whether the
out-of-country medical treatment that was received was of a kind and quality
that would be acceptable in Canada was relevant. Because the treatment that was
received had not been recommended, independent consideration of the point was
not required. For purposes of Article 4.06, the inadequacy of the procedure
performed in China is reflected in the fact that neither practitioner was
prepared to recommend it.
[19]
Article 4.07 does not provide an independent base for the claim that any
portion of the deceaseds costs should be reimbursed. It cannot be construed to
impose an obligation on the administrator to reimburse expenses that are
related to an individuals choice to resort to a treatment or procedure that is
not of a generally accepted quality and kind from a Canadian perspective when
he does not qualify for an acceptable quality and kind of treatment or
procedure in Canada.
[20]
In all of the circumstances, I am satisfied that the application to
oppose confirmation of the referees decision must be dismissed.
Mr.
Justice Pitfield