Man seeks payment for transplant denied here

Man seeks payment for transplant denied here

TheStar.com
January 21, 2008
Isabel Teotonio
Staff Reporter

Each time Adolfo Flora finds himself in court, he's overwhelmed by the memories of when he was forced to accept death or fight to live.

First came the diagnosis of liver cancer in 1999. Next, came the refusal for a transplant in Ontario. Finally, there was the $450,000 he spent in England on a life-saving procedure he couldn't get at home - a decision that sparked a legal battle with the Ontario Health Insurance Plan.

"We've been through this so many times," said the 58-year-old retired Toronto high school teacher Monday, while fighting back tears and being comforted by his wife at Osgoode Hall, where his case was heard in the Ontario Court of Appeal.

"This was the most difficult time (in our lives) and every time we're in court everything comes back as if it was yesterday - the hopelessness and the negative situation."

On Monday, his lawyer, Mark Freiman, argued before a panel of three judges seeking to overturn an Ontario Divisional Court ruling that found Flora's Charter rights were not violated when OHIP refused to reimburse him for the overseas treatment.

"If the right to life means anything. . . . It means the right to have access," Freiman told Justices Eleanore Cronk, Robert Sharpe and Eileen Gillese.

When a government monopolizes health care, rations services, denies treatment and then "seals off the exits," that is a violation of a person's Charter rights, said Freiman, a former deputy attorney general of Ontario and an expert on the Charter.

"With that monopoly comes a responsibility to protect the right to life and security of the people of Ontario, who have no reasonable alternative for health care," he later said outside the courtroom.

Counsel for OHIP argued Flora's Charter rights were not violated because the government never deprived him of the right to seek treatment.

"There was nothing that the government did to deprive Mr. Flora of his ability to obtain treatment - the treatment decision was made by Ontario doctors," said Janet Minor, adding it was "made in accordance with Ontario standards." The judges heard arguments form both camps Monday and reserved their decision. Often, the Court of Appeal is the last stop for litigants, but they can seek to have their cases heard in the Supreme Court of Canada.

Flora's unusual tale dates back to 1973, when a vein was nicked during a routine surgery, which resulted in heavy bleeding and the need for a blood transfusion. He was given tainted blood and contracted hepatitis C, which led to the diagnosis of liver cancer in November 1999.

Given the scarcity of organs and the advanced stage of his cancer, specialists in Ontario said his chances for survival were slim if he underwent a full transplant from a dead donor.

At the time, living-relative liver transplants from adult to adult, in which part of a living donor's liver is transplanted, hadn't been done in Canada. Even though one of the Ontario specialists was looking for a candidate for such a procedure, the risk to the donor in Flora's case was deemed to be too great.

As a result, the Toronto man explored other avenues. He and his physician sought OHIP reimbursement for treatment in England. They were denied because it would have involved a procedure, chemoembolization, that was considered experimental in Ontario and not part of the insured services.

Nonetheless, in February 2000, Flora went to Cromwell Hospital in London, England, where he received a transplant from a living donor - his brother.

When he returned home, the Health Services Appeal and Review Board upheld OHIP's decision.

On Monday, a tired-looking Flora said one of the greatest lessons learned during this odyssey has been the need to fight for one's own health.

"People need to advocate for themselves," said Flora who today is free of both cancer and hepatitis C. "And they shouldn't be afraid to look for solutions."

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