Denied a Jury in North Carolina?

Posted on Apr 27, 2007

When B. W. Holland filed his lawsuit in Harnett County to address issues arising from his exposure to used, dirty hydraulic fluid during surgery at Duke Raleigh Hospital, Duke objected to allow a Harnett County jury to decide the case. Instead of submitting the issue to Harnett County juries, Duke hired one of the largest law firms in the country, Fulbright & Jaworski, to take away Mr. Holland’s right to have the case heard by a jury in his own county. The trial court allowed Duke’s Motion to Compel Arbitration, thereby allowing the case to be decided by an arbitrator, rather than by a Harnett County jury.

In its efforts to force Mr. Holland into arbitration, Duke relied upon two documents signed by Mr. Holland which indicated that he agreed to arbitration. However, both of these documents were signed while Mr. Holland was in the process of being admitted into the hospital. Further, the agreement was signed before any dispute arose between Mr. Holland and Duke.

Mr. Holland was exposed to used, dirty hydraulic fluid when he underwent extensive orthopedic surgery in November 2004. It was not until January 2005, when, for the first time, Duke notified Mr. Holland (along with approximately 4,000 other victims) that instruments used in their surgeries had been washed in hydraulic fluid. Now that the court has allowed Duke’s Motion to Compel B. W. Holland to arbitrate his hydraulic fluid claim, the attention of the country has turned to the American Arbitration Association to see what their position will be on this issue.

Effective January 1, 2003, the American Arbitration Association, according to its official policy as shown on its website, will no longer arbitrate cases involving a claim by a patient after the delivery of healthcare services. The only exception is when the patient and a hospital agree to arbitrate after a dispute has arisen. Mr. Holland signed an arbitration agreement in connection with his admission into Duke’s hospital on two occasions, both in November 2004. A dispute did not arise between Mr. Holland and the Duke Raleigh Health Hospital until January of 2005 when Duke announced that it had bathed surgical instruments in hydraulic fluid prior to their being used in surgery rendered to patients at Duke Raleigh Health. There was, therefore, no pre-dispute arbitration agreement in Mr. Holland’s case. Nevertheless, the lawyers from Washington, DC, who spoke on behalf of Duke in the Harnett County Superior Court, assured the court that the American Arbitration Association would arbitrate Bennie Holland’s case.

Do the Duke lawyers know something that the general public does not know about the American Arbitration Association? That association, the largest alternative dispute resolution organization in the world, has announced to the world that it will not hear post-dispute healthcare arbitration cases. Why would the American Arbitration Association agree to hear the Duke case when it has announced to the world that it will no longer hear these cases? The American Arbitration Association has not yet announced whether it will in fact hear Bennie Holland’s case.

Mr. Holland issued a statement expressing his hope that the American Arbitration Association will continue to be an organization of its word and will demonstrate to the world that they operate under sound policies of fairness and due process to all. When Mr. Holland signed one of these arbitration agreements in 2004, he had a fever so high that the hospital staff packed him in ice. His open wound from the surgery was extremely infected and was oozing purulent discharge material when he was admitted. While Mr. Holland was in this severely compromised state of health, Duke obtained Mr. Holland’s signature on an arbitration agreement which Duke is now using to deny Mr. Holland a Harnett County jury.