In January, the Supreme Court of North Carolina decided that a
patient and his wife could pursue a malpractice claim against a sur-
geon and his practice over injuries sustained during a hernia repair
performed in 2009 — even though the patient signed an agreement to
engage in "alternative dispute resolution" in the event of any dispute
arising from the surgery (osmag.net/Ub4ShB). Here are 4
lessons we can take away from this case.
Be up front. One reason the court let this case go to trial was the
fact that the surgical practice, Village Surgical Associates of
Fayetteville, N.C., lumped the arbitration agreement in with several
intake forms while the patient, Robert E. King, was in for a pre-surgi-
cal consult. Mr. King later acknowledged that he didn't read any of
these documents, believing them to be "a formality."
None of that would have mattered much had the surgery to repair a
bilateral inguinal hernia been uneventful. But during the case, the sur-
geon injured Mr. King's distal abdominal aorta, which resulted in
abdominal bleeding. The surgeon was able to repair the injury, but the
remedial procedures that followed led to the occlusion of an artery, a
thromboembolism in the right leg and acute ischemia in the right foot,
according to court records.
In September 2011, Mr. King and his wife filed a complaint against
the surgeon and the practice, seeking damages for medical malprac-
tice. In turn, the defendants filed a motion seeking to have further liti-
gation stayed and the arbitration agreement enforced. The plaintiffs
then argued the agreement was unenforceable because the hiring of 3
arbitrators, as stipulated in the agreement, would create a financial
burden.
For several years the case went back and forth between the trial
court and the Court of Appeals, until it found its way to the Supreme
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