Boston Personal Injury Attorney Blog
State supreme court justices in North Carolina have ruled that a couple may proceed with their medical malpractice lawsuit against a surgical center in Fayetteville.
As our Massachusetts medical malpractice attorneys understand, the issue of whether arbitration agreements should be enforced in health care disputes remains a contentious one. 
This case involved plaintiffs who were fighting against an arbitration agreement prior to surgery plaintiff underwent in 2009. These types of agreements are becoming increasingly popular with a number of businesses – including physicians and other health are providers – as a means to avoid civil litigation stemming from disputes or allegations of wrongdoing or negligence. We’ve seen them most often in cases of nursing home abuse and neglect, where facilities compel patients and their loved ones to sign these agreements as a term of admission – often without any detailed explanation of the fact that residents are forfeiting their legal right to have disputes resolved in a court of law.
According to North Carolina Supreme Court records, defendant surgeon was repairing a hernia on plaintiff patient when somewhere in the process, plaintiff suffered an injury to his distal abdominal aorta. This is a major blood vessel, and the result was plaintiff started bleeding into his abdomen. This led to the blood supply to plaintiff’s right leg and foot being completely cut off.
It took extensive efforts to save the leg. Plaintiff was out of work for months while he was healing from this injury, and to this day, he suffers from limited use of his leg and foot.
Medical malpractice plaintiff conceded that he didn’t read the arbitration agreement thrust in front of him by the doctor who was treating his hernia. It had been handed to him in a large stack of other medical paperwork. He believed all the records were routine, and that he was required to sign them in order to be admitted as a patient for his pressing medical issue.
One of the first things the state supreme court justices noted upon review was tat the agreement wasn’t clearly written. That has to be given special consideration when you know that the average person reading it was not an attorney or even a doctor. That raises the issue that the doctor’s office knew or should have known that the average patient wouldn’t have regarded this document as worthy of special consideration.
The majority opinion noted that by the time hark, he had already placed his confidence in his doctor. That means at that juncture, the doctor owed patient a fiduciary duty to explain the arbitration agreement and highlight the consequences and ramifications of signing it.
The court ruled that because the doctor’s office benefited from the breach of fiduciary duty, the agreement was not enforceable.
Dissenting justices – including Chief Justice Mark Martin – wrote it was their opinion that state courts did not have the authority to invalidate these agreements based on federal arbitration law.
Although the ruling does not have a direct impact on Massachusetts law, it’s worth noting, as state high courts tend to look to their sister courts when weighing the same or similar issues of first impression.
If you have suffered personal injury in Massachusetts, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777.
Additional Resources:
King v. Bryant, Feb. 6, 2017, North Carolina Supreme Court
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