Annette Lewis v. AHS, ABC Hospital, doctors who cannot be named

The Justice Centre represents Sheila Annette Lewis, who has idiopathic pulmonary fibrosis, a terminal condition. She brought an application in the Alberta Court of Queen’s Bench asking that the court uphold her Charter-protected right to conscience, bodily autonomy, and freedom to choose without coercion.

This case is under a publication ban. Due to a Court Order, the Justice Centre may not reveal the names of the doctors, the hospital, the city where the transplant program is located, nor the name of the organ that Ms. Lewis needs for life-saving surgery.

The transplant program team is a group of doctors who work within an organ transplant program, which is funded by Alberta Health Services (“AHS”). Both the transplant program and AHS have unwritten policies which require transplant candidates to receive the Covid vaccine prior to receiving their transplant.

Neither the treating physicians’ nor AHS’ Covid vaccination policies for transplant patients are written, but both were communicated to Ms. Lewis by her treating physicians. While the circumstances around the policy were debated, Justice Centre lawyer Allison Pejovic notes the evidence was clear that AHS and the treating doctors, either made the policies, were aware of the policies, or enforced the policies.

In support of her Charter arguments, Ms. Lewis filed expert reports from two immunologists, Dr. Bonnie Mallard and Dr. Byram Bridle, who is also a vaccinologist. Their expert reports and oral testimony illustrated that the Covid vaccines are still in clinical trials and will be in clinical trials until late 2022 at the earliest, and that the peer reviewed research and raw scientific data lead them to seriously question the safety and efficacy of the Covid vaccines as compared to traditional vaccines that have been around for decades.

She also filed an expert report from a surgeon with a Masters in Health Care Ethics, Dr. Benjamin Turner, who testified that the benefit of vaccination for Ms. Lewis was so small that it was unethical to require her to get the Covid vaccine prior to her transplant.

On July 12, 2022, Alberta Court of Queen’s Bench Justice R. P. Belzil found that while the Charter applies to AHS, in this instance “the proposed AHS policy, which has not been completed, mirrors the recommendations of the treating physicians which are exercising clinical judgment.” The evidence in fact showed that one of the treating physicians advised Ms. Lewis in November 2021 that AHS required Covid vaccination for transplant candidates.

Justice Belzil declined to address the scientific and ethical arguments advanced because he determined that the Charter did not apply to the treating physicians.

The Justice Centre is reviewing the decision to determine whether to file an appeal.


Updated April 18, 2023:

The Counsel for Sheila Annette Lewis, an unvaccinated transplant candidate with a dire terminal illness, has sent a demand letter to AHS, an Alberta hospital, and her transplant physicians, demanding that they accept her now established (and widely-accepted) natural immunity to Covid-19 as an alternative to Covid-19 vaccination and reinstate her to the high-priority transplant waitlist by April 21, 2023.On March 29, Ms. Lewis provided her doctors in the Alberta Transplant Program with a privately funded medical report (“Kinexus Report”) establishing that Ms. Lewis has strong natural immunity to Covid-19 and had overcome previous Covid infections.On April 3, one of the transplant physicians informed her that despite these test results which show she has natural immunity to Covid-19, nothing had changed in regards to healthcare policies pertaining to Covid-19 vaccination requirements and she would still need to receive the Covid-19 vaccines before they would agree to give her an organ transplant. He told her that the Kinexus Report concluded that even with natural immunity, she would need a booster dose of the Covid-19 vaccine. However, the report does not say anything about Ms. Lewis needing a booster dose of the Covid-19 vaccine to maintain immunity to Covid-19.Ms. Lewis is dying of a terminal illness. She had earlier taken Alberta Health Services (“AHS”), an Alberta hospital, and six transplant program physicians to court over their refusal to proceed with a life-saving organ transplant solely because she has not taken the Covid-19 vaccine. She has been challenging the constitutionality of Covid-19 vaccine requirements for transplant candidates put in place by AHS, an Alberta Hospital, and six transplant doctors, for more than a year. She was unsuccessful at both the Alberta Court of Queen’s Bench and the Alberta Court of Appeal in 2022, with both levels of court finding that the Canadian Charter of Rights and Freedoms (the “Charter”) and the Alberta Bill of Rights do not apply to the Covid-19 vaccine policies developed by AHS, the Alberta hospital where she would receive her transplant, and her transplant doctors. She has filed an application with the Supreme Court of Canada, asking them to hear her appeal. Canada’s highest court has not yet decided whether it will do so.This case is under a publication ban. Due to a court order, the Justice Centre cannot reveal the names of the doctors, the hospital, the city where the transplant program is located, or the name of the organ that Ms. Lewis needs for life-saving surgery.Ms. Lewis asked her physicians nearly a year ago to test her blood for Covid-19 antibodies to see if she was naturally immune, and they refused to do so. Recently, however, with private funding, Ms. Lewis did have her blood analyzed at Kinexus Bioinformatics Corporation as part of her enrollment in Kinexus’ clinical study entitled “Identification of SARS-CoV-2 Viral Protein Epitopes for Antibodies from Recovered COVID-19 Patients, Healthy and Vaccinated Individuals”. This study has received Independent Review Board approval. To date, Kinexus has monitored over 4000 COVID-19 patients and healthy, unvaccinated controls with its SARS-CoV-2 antibody tests. The study’s preliminary results were published in the peer-reviewed Journal of Clinical Investigation Insight.The Kinexus report found that Ms. Lewis’s blood sample (1) “clearly supports the presence of SARS-CoV-2 immunoreactivity”, (2) shows that she was likely infected with SARS-CoV-2 around mid-September 2021, (3) shows that she was infected with SARS-CoV-2 again more recently and has extremely high levels of antibodies against SARS-CoV-2.The clinical study found that for the majority of participants with natural immunity, SARS-CoV-2 antibody levels are sustained for at least two years after initial infection.In August 2022, the US Centre for Disease Control announced that while Covid-19 vaccines have reduced mortality and hospitalizations due to Covid-19 in the US, so has natural immunity to Covid-19. A February 2023 study from The Lancet demonstrates that natural immunity cut the risk of hospitalization and death from a Covid reinfection by 88% for at least 10 months, and the immunity generated from an infection was found to be “at least as high, if not higher” than that provided by two doses of an mRNA vaccine.“The transplant program team, AHS, and the hospital ought to accept Ms. Lewis’s natural immunity to Covid-19 as an alternative to Covid-19 vaccination and reinstate her to the high priority transplant list immediately,” states Allison Pejovic, legal counsel for Ms. Lewis. “There is no principled medical or scientific reason to continue to deny Ms. Lewis a life-saving organ transplant,” Ms. Pejovic continued, “She is protected from Covid-19 as she has had it twice. The refusal to accept Ms. Lewis’s natural immunity as an alternative to Covid-19 vaccination and give her life-saving surgery is indefensible and a disgrace.”

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