Of bad blood and blame
A legal battle begins over who is responsible for the HIV infections
Janet Conners sat in the corridor outside a downtown Toronto courtroom, talking about her late husband, Randy. It was, she noted, the day that he would have celebrated his 40th birthday. However, Randy died in September, 1994, at the age of 38 after a protracted and painful battle with AIDS. A severe hemophiliac, he was one of the more than 1,000 people infected in the late 1970s and early 1980s with the human immunodeficiency virus, which causes AIDS, after receiving contaminated blood or blood products from the Canadian Red Cross Society. As she spoke, Conners’s bitterness and anger were apparent. “This is not where I thought I’d be on his 40th birthday,” said Conners, who herself contracted HIV through her husband and has developed AIDS. “I need to be in that courtroom to bear witness for him. I want all those lawyers to have to walk by me every single day.”
With that, she returned to the courtroom and resumed her vigil over the epic legal battle that began last week in the Federal Court of Canada, a batde that may determine how much the public eventually learns about the country’s tainted blood tragedy. For the past two years, surviving victims and their families had hoped that a federal-provincial inquiry, under Ontario Court of Appeal Judge Horace Krever, would explain how the blood supply became contaminated and, equally important, who was responsible. But last week, lawyers representing, among others, the Red Cross, the federal government, six provinces and 31 former health ministers, began arguing before Justice John Richard that Krever should not be able to name anyone or assign blame to any person. To do so, said Red Cross lawyer Earl Cherniak, would turn an inquiry into a trial and violate the rights of those organizations and individuals. ‘We are not trying to fetter, hinder or stop the inquiry,” Cherniak said. “It is unnecessary to make direct findings of fault against institutions or individuals.”
While the legal arguments were scheduled to end by May 31, some observers predicted that the dispute will delay the completion of Krever’s report for months—and perhaps for years. The Toronto-based inquiry, which has cost more than $13 million so far, concluded two years of public hearings last December after travelling to every province except Prince Edward Island, and after hearing testimony from 460 witnesses. Krever intended to complete his final re-
port, including recommendations for an overhaul of the blood supply system, by September. But representatives of the victims predict that even if Richard rules against the Red Cross and the governments, they will likely appeal all the way to the Supreme Court of Canada. “The whole intent of their action is to derail the final report,” said Durhane Wong-Rieger, president of the Canadian Hemophilia Society.
Representatives of the Red Cross maintained that they cooperated fully with the Krever inquiry during the hearing phase. And they insisted that they were prepared to accept a final report that was critical of the blood-handling system as it was set up in the 1980s when the problems occurred. But they said a public inquiry should not result in accusations of misconduct that could leave individuals
open to civil suits or, worse, criminal prosecution. “There are individuals within the Red Cross and other organizations whose reputations are being impugned,” society president Janet Davidson told Maclean’s. There has been no due process in the courts to determine whether those people took specific actions that harmed the lives of others.”
The concerns about civil or criminal liability are based on a series of formal advisory letters, known under the Inquiries Act as notices, sent by lawyers for the inquiry to dozens of individuals late last December. The notices, which were intended to be confidential, stated that Krever could potentially make findings of misconduct in his final report They also gave the individuals and organizations named an opportunity to respond to the allegations, orally or in writing, by early February. Rather than accepting that offer, the Red Cross, along with Ottawa and all the provinces except Nova Scotia, Ontario, Saskatchewan and British Columbia, decided to ask the Federal Court to overturn the notices. But in launching a legal action, they had to file the confidential notices with the court, meaning that they became public documents. As a result, the Red Cross included its notices in a press release it issued last January in which it announced the court challenge. “We put them out to avoid the appearance that we had to have them pried out of us,” said Red Cross secretary general Douglas Lindores.
The notices sent to the society ran to 25 pages and include dozens of allegations against the organization and 45 individuals employed by the Red Cross when the contamination of blood supplies occurred, including former secretary general George Weber and his former deputy Dr. Roger Perrault. Inquiry ] lawyers cited numerous problems with the organization’s donorÊ screening program between late 1982, when doctors first recog> nized that the AIDS virus could be transmitted through blood i supplies, and November, 1985, when the Red Cross began ] screening every unit of donated blood for the presence of HIV. ¡ As well, the society waited until 1987 before it began actively ex-
eluding high-risk donors, such as homosexual men with multiple sexual partners. “The Canadian Red Cross failed to implement an effective national donor-screening program, this failure causing unnecessary cases of transfusion-associated HIV and AIDS to occur,” the notices to the Red Cross said.
Commission lawyers concluded the notices to the Red Cross by listing allegations against individual doctors who ran blood collection centres in major cities across the country. They accuse most of the doctors of failing to contact organizations representing gays with requests that their members refrain from donating blood. More seriously, they allege that in mid-1985, while the Red Cross was switching to blood products that had been heattreated to kill the AIDS virus, some doctors continued to issue non-heat-treated products to hemophiliacs “as part of a planned depletion” of their inventories.
In his arguments before Federal Court Judge Richard, which lasted almost three days, Cherniak argued that the use of the term “planned depletion” suggested a conspiracy had occurred among the medical directors of the collection centres. He also objected strenuously to allegations that some senior Red Cross officials had misrepresented society policy on donor screening during discussions with other agencies involved in the blood collection system. And he maintained that commission lawyers should not have accused the organization of withholding information about the effectiveness of heat treatment. The allegations imply that Red Cross employees were guilty of criminal or civil wrongdoing and, if included in Krever’s report, would ruin the reputations of those individuals, he said. “The Red Cross notices are replete with very serious charges,” Cherniak said. “What he [Krever] ought not do is make findings that there was misrepresentation. That is what courts and judges are for, not commissions of inquiry.”
According to outside legal experts, however, legislative guidelines and restrictions on public inquiries are not that clear-cut.
^The whole intent is to derail the final report. It's frustrating. ^
Commission lawyers sent out the notices in accordance with Section 13 of the federal Inquiries Act, which stipulates that an individual must be notified if he or she is going to be accused of misconduct, and must be given an opportunity to respond before a report is issued. Kent Roach, a law professor at the University of Toronto, notes that the legislation does not define misconduct, which could range from a violation of professional ethics all the way to serious criminal activity. Given those ambiguities, and the potential for abuses,
Roach contends that public inquiries should avoid blaming individuals. “They don’t have the due process people are afforded in criminal trials or civil litigation,” he said. “Public inquiries are best at finding facts and making recommendations for the future.”
On the other hand, Edward Ratushny, a professor of public law at the University of Ottawa, contends that public inquiries can, and should, make findings of misconduct and name the individuals responsible. Krever cannot accuse someone of criminal or civil liability, but he could conclude, for example, that errors of judgment had been made or that irresponsible behavior had occurred. “The purpose of a public inquiry is to have a comprehensive, detailed and impartial examination of the facts in order to restore public confidence,” said Ratushny.
Representatives of the victims viewed the legal attacks on the Krever inquiry as an attempt to prevent full disclosure of the facts— and said that many fear that they will die before they ever get to
learn the truth. “I see this as a colossal waste of time,” said Conners, “time most of us don’t have.” The victims maintain that Red Cross officials are preoccupied with the image of the organization and the reputations of individual employees, rather than the right of victims to know why they got sick and who was responsible. Besides those who were infected with HIV through contaminated blood, an estimated 12,000 people also contracted hepatitis C, an often fatal disease that attacks the liver and can cause severe jaundice, fatigue and hemorrhaging. Several hepatitis C victims attended last week’s hearing, including eight-year-old Jarad Gibbenhuck of Penticton, B.C., who received tainted blood during heart surgery when he was an infant. “The real denial of justice is what happened to the victims,” said Wong-Rieger. “Don’t victims have a right to know who harmed them and how they got harmed? I think Krever’s report is going to be a crippled affair. I think it’s going to be watered down so badly that if s going to be meaningless to most of the victims.”
Regardless of what Krever eventually says in his report, it will come too late for the more than 500 victims who have already died. “I just had a friend, an HIV-infected hemophiliac, die two weeks ago,” said 34-yearold James Kreppner, a Toronto lawyer who has also developed AIDS as a result of contaminated blood products.
“He wanted to see the results of the inquiry. But they’ve managed to drag things out, so he went to his grave without getting any answers.”
For most of the surviving victims, and their families,
Krever’s report may offer personal solace, and little else, because they have given up their right to sue. In March,
1994, just as the public hearings were about to begin, the provincial and territorial governments, the Red Cross, pharmaceutical manufacturers and insurance companies offered compensation packages. About 850 of 915 eligible individuals and families accepted the offer, which provided $22,000 up front, $30,000 annually until death and the same level of survivor benefits for five years afterward. But one of the conditions attached to the packages was that recipients would not pursue future legal actions. “I accepted the settlement because my health had declined,” said Ronald Mitchell, 36, of Hagersville, Ont., 35 km southwest of Hamilton. “I felt forced to take it. I just wish all of this had been over a long time ago.”
Some lawyers for victims who decided to pursue lawsuits say that their cases do not depend on Krever’s findings. Toronto lawyer Kenneth Arenson, who represents about 20 such clients, said that the notices issued by commission lawyers are not admissible in civil trials. Privately, however, some Red Cross officials dispute this, saying that, in some cases, Krever’s notices have been added to statements of claim used to initiate lawsuits. But Arenson insists that he does not need Krever’s allegations for his next trial, involving the families of two victims who have died and a third who is still alive, which is scheduled to proceed in a Toronto courtroom in September. Each of the plaintiffs is seeking more than $1 million in damages. “What was a tremendous advantage to the plaintiffs was the information that the commission turned up, documents that were dynamited out of them,” said Arenson. “The Red Cross had been able to avoid producing documents for years, and they did it legally. The inquiry, to some extent, has provided a more level playing field.”
The Red Cross says its blood is as safe as it can be
It has also been a public relations nightmare that has contributed to a decline in blood donations and shaken public confidence in the safety of blood supplies. The latest available figures show that in the year ending March 31, 1995, the Red Cross collected 995,000 units of blood from an estimated 650,000 donors, down five per cent from 1.05 million units collected the previous year. Meanwhile, internal public opinion polls by COMPASS Inc. commissioned by the Red Cross reveal a startling loss of faith in the system over an 18-month period starting in the fall of 1994. The first poll showed that 19 per cent of Canadians would not want to have a blood transfusion. By December, 1995, that figure had risen to 39 per cent, its peak level, before tapering off to 36 per cent in March.
Those trends have occurred, Davidson said, even as the Red Cross has taken steps to improve the safety of blood and blood products. She noted that employees involved in the collection and distribution systems must abide by 1,900 standard operating procedures, most of which have existed for several years. But government regulatory agencies in both Canada and the United States now require much more rigorous documentation and adherence to standards. At the same time, the Red Cross has set up stringent
donor-screening procedures to ensure that members of high-risk groups, including intravenous drug users or homosexual men with multiple partners, are not giving blood. “One of the complaints people often raise now is the time it takes to give a unit of blood,” said Davidson. “It used to be that on your lunch break you could make a donation and go back to work. That’s very rarely the case any more simply because of the questionnaire alone.”
As a result of those and other changes, Red Cross officials now believe that Canada has one of the safest blood collection and distribution systems in the world. And they did receive a qualified endorsement from Krever, who issued an interim report in February, 1995. It contained 43 recommendations, including a proposal to avoid locating blood donor clinics in areas known to have higher than normal prevalence of HIV and that hospitals should maintain their efforts to contact former patients who may have received tainted blood between 1979 and 1990. “I am confident,” Krever wrote, “that Canada’s blood supply is not less safe than that of other developed nations. There is, however, no justification for complacency.” He warned that a tragedy could occur again due to contamination of blood supplies, and added: “How to minimize the likelihood of such a calamity is the challenge to be addressed in the further work of this inquiry and the final report.” But Canadians may wait a long time before that document, and its recommendations, ever see the light of day.