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B.C. Ear Bank Lawsuit Defendants Granted Chance to Appeal

Jan 16, 2008 | Parker Waichman LLP

The B.C. Ear Bank, a Canadian ear bank that was forced to close in 2002 after it was learned that it may have distributed defective tissue and bone that had not been tested for HIV, the virus that causes AIDS, and other diseases, will be allowed to appeal a decision in a British Columbia negligence lawsuit that could potentially become a Class Action.   The suit in question was filed almost three years ago by Margaret Birrell of Vancouver, who said she may have received infected donor tissue from the B.C. Ear Bank during reconstructive eardrum surgery in 1994 at St. Paul's Hospital in Vancouver.

The B. C. Ear Bank lawsuit alleges negligence relating to the Ear Bank's donor screening, collection and distribution of ear bone and tissue from donor cadavers and their use during surgery. The lawsuit states the defendants' conduct was "reprehensible and is deserving of sanction by the court through the award of (unspecified) punitive damages."    Lawyers representing plaintiffs in the B.C. Ear Bank lawsuit estimate the potential class size is a few thousand people in Canada and the U.S. who received Ear Bank tissue and other products.  

The B.C. Ear Bank lawsuit stems from a scandal reported by The Vancouver Sun in 2003 in which St. Paul's Hospital officials acknowledged there were serious problems with the record-keeping and day-to-day operations of the B.C. Ear Bank, which had been housed in the hospital since 1995 but was shut down in 2002.  After closing its doors, the B.C. Ear Bank issued a recall for all unused tissue and bone that it had distributed.  The ear bank had distributed 6,016 specimens to about 80 hospitals across in Canada and the U.S.  for transplant and research purposes.

When Health Canada conducted a review of the facility in late 2002, there were numerous health and safety concerns about the way materials like bones, membranes, and cartilage were being collected, stored and distributed.   A review of the  B.C. Ear Bank’s available donor records indicated that 40 donors tested positive for hepatitis B. Over 100 pieces of tissue and bone from these infected donors were distributed and it has been confirmed that some of this infected material was transplanted into humans.

Margaret Birrell was one of the recipients of the 2003 Health Canada public-health advisory letter, which raised concerns about Ear Bank screening and documentation. The letter suggested recipients be tested for certain diseases, including hepatitis A, hepatitis B and HIV.  Birrell became the representative plaintiff in a proposed class-action suit against St. Paul's Hospital, Providence Health Care, the Vancouver Coastal Health Authority, the University of B.C., Vancouver Hospital and the B.C. Ear Bank.

But it turns out that the tissue Birrell received did not come from the B. C. Ear Bank, and that the letter had been sent to her by mistake.  She then applied to be removed from the suit and to add two plaintiffs.  That request was granted, but Providence and Vancouver Coastal Health recently applied for leave to appeal that ruling. Appeal Court Justice Pamela Kirkpatrick on Tuesday granted leave to appeal.


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