Judge rules patient can sue Duke over surgery

RALEIGH -- A Harnett County man on disability since surgeons may have operated on him with instruments coated in hydraulic fluid will be able to sue Duke University Medical System.

A judge ruled Wednesday that the $14,000 price tag to bring the grievance before a panel of private arbitrators is too costly.

The ruling by Superior Court Judge Allen Baddour could be repeated in other courtrooms around the state. It echoes a decision by the N.C. Supreme Court this year that found mandatory arbitration agreements, used in everything from hospital stays to cell phone plans, can make it too pricey for consumers to pursue their disputes.

The higher court ruling could also help create a more favorable legal climate for an untold number of the 3,648 patients who may have been operated on in late 2004 with contaminated instruments at two Duke hospitals, one in Durham, the other in Raleigh. It is not known how many of these patients signed arbitration agreements before their surgeries.

The decision Wednesday comes as the national climate begins to turn against arbitration. A decade ago it was a little-used method of solving business disputes outside court. Now it is a mandatory agreement consumers enter into during everyday transactions with businesses, signing away their right to file lawsuits.

The arbitration process has long been criticized by consumer advocates. They claim the system gives businesses an unfair advantage and shifts a higher cost onto consumers, who have little understanding of the complicated system.

But supporters say arbitration reduces the stress on busy court dockets and hurts only lawyers looking to benefit from high-dollar settlements or jury verdicts.

Federal legislation pending in Congress would limit the types of cases that can go to arbitration. One bill, the Arbitration Fairness Act, would prevent mandatory arbitration clauses in consumer and employment disputes.

For Bennie Holland, Wednesday's decision might mean he can hold someone accountable for the daily pain and various illnesses he attributes to the operation.

Before going into surgery, he was handed a stack of papers to sign, including a document that took away his right to take the hospital to court.

"I signed papers because it was papers I had to sign in order to get treated," said Holland, a former building supply and construction worker.

At a hearing Wednesday afternoon in a Wake County courtroom, Holland's lawyers cited the high court decision. It found arbitration clauses in loan agreements signed by two women "unconscionable" because the women would have to pay thousands of dollars to go through arbitration and because the clauses prevented class-action suits.

Holland said he faced those same problems and estimated it would cost him $14,000 to file his grievance with an arbitration panel to contest what happened in the operating room.

Duke's attorneys argued that Holland opted to enter the arbitration agreement voluntarily. Fees could be waived if the arbitration board found they were too high, they said.

"This is not presented as a take- it-or-leave-it basis," said John Simpson, a Washington lawyer for Duke. "It binds both parties."

Most people don't realize that they are subject to arbitration until something goes wrong, said F. Paul Bland Jr., a staff attorney at Public Justice, a Washington public-interest law firm. But arbitration clauses are present in a wide variety of agreements people enter: car loans, credit cards, cell phone contracts and airline tickets.

"Very few Americans read the fine print," Bland said.

The surgeries with contaminated instruments took place at Durham Regional and Duke Raleigh hospitals in November and December 2004. Many of the patients have reported suffering from infections, immune-system issues and inflammatory response problems since their surgeries, although Duke released a study that found health effects to be minimal.

The mix-up with the hydraulic fluid was the result of a series of errors that started when repairmen drained elevator fluid into empty detergent drums. It was then mistakenly shipped back to the two hospitals as washing fluid.

Earlier this summer, Duke settled claims by 60 additional patients who said they had been harmed by the hydraulic fluid. The terms of the settlement were not disclosed. Also, 18 other people, represented by the same Raleigh lawyer as Holland, filed a separate lawsuit.

Holland said he has been unable to work since his surgery and had to dip into his daughter's college funds to make ends meet.

The former building supply and construction worker said he wakes up each morning in tears from pain and continuous, flulike symptoms. He wears a medicated patch. A good day, of which he has three a week, means he can make it onto his porch to enjoy the weather.

Bad days are spent in bed, leaving Holland depressed because he cannot do what he loves: house building, deep-sea fishing, camping and skiing on water and snow.

"There's really nothing I can do," he said.