When the Commission of Inquiry on the Blood System in Canada (better known as the Krever inquiry) released its monumental report in November, 1997, the No. 1 recommendation read as follows:
“… without delay, the provinces and territories [should] devise statutory no-fault schemes for compensating people who suffer serious, adverse consequences as a result of the administration of blood components or blood products.”
A full 12 years later, there is finally action.
The Quebec government, in its last act before breaking for the holidays, adopted Bill 24, an act to amend various legislative provisions concerning health.
Buried in the mishmash of legislative housecleaning was an amendment to the law regulating the province’s blood supplier, Héma-Québec.
That amendment, entitled “Compensation for victims of a Héma-Québec product,” is quite simply astounding.
It is one of the most important developments in Canadian health law and in patient safety in many years.
The law creates a no-fault insurance plan for anyone who suffers harm from blood transfusions, grafts of human tissues or stem cells distributed by Héma-Québec.
The big winner, in the short term, is Héma-Québec, whose insurance premiums will drop dramatically.
In the long term, however, the patient is the winner. No-fault insurance makes for a safer and more just health system.
The tainted blood tragedy is the worst public health disaster in Canadian history. About 2,000 hemophiliacs and blood transfusion patients were infected with HIV-AIDS and thousands of others were infected with hepatitis C.
It is not necessary, in this context, to repeat the gory details of how and why blood and blood products were infected with deadly viruses, inadequately tested and distributed to unwitting recipients.
But we need to remember that the infections themselves were only the beginning of the indignities suffered by recipients of tainted blood.
They had to fight long, soul-destroying public battles to get an inquiry. They fought even harder – often from death beds – in the political arena and the courts to get Ottawa and the provinces to provide them with even minimal compensation.
In the end, close to $2-billion was set aside in a bunch of federal and provincial plans, but too many of the recipients had already died, and an obscene portion of the money went to lawyers. Perversely, many recipients and their family members are still tied up in bureaucratic wrangling a generation after the infections occurred.
Mr. Justice Horace Krever, who headed the inquiry (and is now retired), was one of the country’s most respected jurists. He has argued, in his report and since, that the adversarial litigation process is failing patients who suffer harm from medical procedures.
The courts are no place to make right what has gone wrong in the course of most standard medical treatment. Civil cases (lawsuits) are judged on a balance of probabilities. There is an assumption of right and wrong, and that there is blame to be apportioned.
But in medical practice, sometimes things can go wrong, and it’s not anyone’s fault. It is, to put it crudely, a part of doing business.
“While we must strive to reduce risk, risk cannot be eliminated,” Judge Krever said in rare public comments at a 2005 patient safety summit. “We must incorporate that reality into public policy.”
Blood transfusion, vaccination, anesthesia and surgery do immeasurable good, but sometimes there is harm done, unfortunately, and through the fault of no one in particular.
With newer procedures such as stem-cell transplants and grafts of tissues and organs, the promise is great, but the risks are not entirely known.
The fear of lawsuits creates a tremendous burden, financial and otherwise. Insurance premiums can be astronomical for organizations such as Héma-Québec and Canadian Blood Services.
In certain (but not all) circumstances, no-fault insurance is appropriate: blood transfusion, transplants, vaccination, stem cells, to name the obvious ones.
Quebec has seen the light. It has acted wisely and justly. The province should be lauded for its no-fault compensation scheme. Its initiative should also be copied by the rest of Canada.
The continuing tragedy is that only Quebeckers will benefit from the no-fault compensation program. Patients who get their blood, blood products, stem cells, tissue and organ transplants through Canadian Blood Services (and other provincial agencies) will still have to depend on the courts if things go wrong.
They have already waited 12 years for politicians to act on the Krever report, to correct one of the most glaring and persistent failings of the blood system.
No-fault insurance should be a key building block of a safer, patient-centred health system.
