The first lawsuit filed against the Duke University Health System in connection with the 2004 hydraulic fluid mix-up was dropped Thursday but will likely be heard in an open court, said a lawyer representing the case.
Bennie Holland, one of about 3,800 patients treated with surgical tools that had been mistakenly rinsed in elevator hydraulic fluid in November and December 2004, temporarily withdrew the lawsuit without prejudice.
He did so immediately before a meeting to dispute the option of arbitration hearings--a condition for legal action over surgical operation-last Thursday.
Holland said he voluntarily withdrew the case, which was filed against DUHS and two companies responsible for mislabeling and shipping the fluids, because he wants a jury to hear the case in an open court, the Herald-Sun reported.
"This matter is anything but over," said Brent Adams, Holland's attorney, in a statement Friday.
DUHS officials maintain that the tools were rinsed in "miniscule" amounts of the fluid and appear to pose no likely health hazards, according to independent studies.
Holland, however, claims the mishap caused a severe infection after his Dec. 10, 2004 back operation, as well as muscle pains, aches and fatigue to date.
The lawsuit filed last month alleges Duke officials took "willful and wanton" efforts to cover up the mishap before announcing it to patients.
Under the terms of Holland's voluntary withdrawal, the case can be re-filed within a year "without prejudice" of the dismissal as a factor in future proceedings.
Although Holland was the first patient to seek action against DUHS, as many as 450 other patients have consulted lawyers.
Thomas Henson Sr., a Raleigh lawyer whose firm represents more than 400 affected patients, said he plans to pursue legal action against DUHS and the two elevator repair and medical supplies companies responsible for filling up and reshipping the mis-labled hydraulic fluid as soon as possible.
"Patients are still experiencing significant symptoms from this, and we are in the final stages of preparing the documents necessary to push the matter forward," Henson said. "Which includes consideration of all potential causes of action, whether classed or not."
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