RALEIGH
- An arbitration agreement foisted on unwitting consumers
by Duke Hospital was invalidated on March 7, 2002, by the North
Carolina Supreme Court.
"This ruling
should give pause to persons - especially to health care providers
- who seek to hide misdeeds from public view by diverting them
to arbitration," noted John Vail of the Center for Constitutional
Litigation, counsel for plaintiffs James and Rosa Milon.
James Milon
went to Duke Hospital for routine prostate surgery and emerged
a paraplegic. He hired counsel, negotiated a claim with Duke,
and didn't sue Duke until after formal mediation had failed.
Prior to
suit, however, on a visit to his long-time family doctor whose
practice had been acquired by Duke, he and his wife were given
a "routine" form, the middle part of which was an arbitration
agreement. Mrs. Milon signed it.
The Court,
adopting a dissent from the Court of Appeals, ruled that Mr.
Milon had not given Mrs. Milon permission to sign the form and
that Duke, which had "dealt with plaintiffs for years," could
not reasonably believe that he had.
"The Court
did not condemn voluntary arbitration," Vail noted. "It did,
however, make clear that arbitration requires consent. Especially
when unsophisticated parties are dealing with trusted health
care providers, consent requires actual understanding of what
people sign."
The Center
for Constitutional Litigation, which is associated with AAJ,
was hired for this case by local counsel, John E. Bugg and William
J. Wolf of Bugg, Wolf & Wilkerson, P.A., Durham, North Carolina
and Gayle Malone, Jr. of Miller & Martin LLP, of Nashville,
Tennessee
Click
here to read the North Carolina Supreme Court decision
Click
here to read the North Carolina Court of Appeals decision
