DUHS replies to hydraulic fluid lawsuit

Duke University Health System requested arbitration with Aramark Management Services in a complaint dated June 12, citing damages exceeding $75,000 from a breach of contract stemming from a 2004 hydraulic fluid mix-up.

Additionally 18 patients represented by Raleigh attorney Henry Temple filed suit June 30 against DUHS for negligence and fraud, asking for an unspecified amount for compensatory and punitive damages. DUHS recently settled out of court with more than 60 patients represented by law firm HensonFuerst for an undisclosed amount.

For two months in late 2004, DUHS physicians used surgical instruments that were mistakenly cleaned with hydraulic elevator fluid to operate on 3,648 patients at Durham Regional Hospital and Duke Health Raleigh Hospital. Numerous patients who were treated in November and December 2004 alleged that they suffered health problems as a result of the mix-up.

"We appreciate and understand that some of the plaintiffs may have physical problems for any number of reasons, including the fact that they had adverse health conditions necessitating surgical procedures to begin with," DUHS officials said in a statement in response to the patients' suit. "And, while we feel we can say with certainty that any exposure to the sterile instruments in question did not cause physical injury, it is our sincere hope that these people get the best medical care and are restored to good health as soon as possible."

In the suit against DUHS, the patients allege that Duke concealed and misrepresented information that would have helped them receive care for the physical problems they suffered allegedly because of the incident. They also allege that Duke attempted to cover up the incident by not reporting it and by destroying evidence.

But Duke's complaint accuses Aramark-which provides maintenance and services for DUHS's clinical equipment and oversees the surgical instrument washing system-of failing to recognize that the petroleum-based fluid was substituted for detergent and to correct the problem after receiving complaints at Duke Health Raleigh about oily tools.

"Aramark's staff were called back on multiple occasions throughout November and December of 2004 to investigate and deal with the issue," the complaint reads. "Aramark's staff inspected and handled washing equipment when it was operating using hydraulic fluid as detergent, yet they negligently failed to ever ascertain that the problem for which they were called-in to investigate was due to hydraulic fluid being used as detergent."

The color of detergent is typically milky, but photographs showed that at least one bin that officials later confirmed contained hydraulic fluid had substance the color of "maple syrup," according to a June 2005 report by the Centers of Medicare and Medicaid and the North Carolina Department of Health and Human Services.

DUHS also alleges that Aramark repeatedly and incorrectly assured officials that the problem had been fixed.

Representatives from Aramark said they do not comment on matters of pending litigation. University officials declined to comment on the complaint against Aramark.

In Fall 2004, an Automatic Elevator Co. employee drained hydraulic fluid from an elevator in Duke Health Raleigh into empty buckets labeled as detergent for surgical instruments.

Employees from medical suppliers Cardinal Health 200, Inc. took custody of the containers and transported them back to Duke Hospital, Durham Regional, Duke Health Raleigh and Wake Forest University Baptist Medical Center in Winston-Salem. Only Durham Regional and Duke Health Raleigh, however, used the fluid.

DUHS officials have maintained that the surgical instruments were not tainted by exposure to the fluid and wrote in the complaint that Aramark's alleged negligence may have resulted in tools that were "potentially contaminated."

An independent analysis performed in June 2005 concluded that the sterilization process was not compromised in disinfecting the tools prior to operations, although the hydraulic fluid exposure left them oilier than normal. Sterilization follows the initial washing process and involves rinsing the instruments at high temperatures and then disinfecting them in a 270-degree centigrade oven, according to a June 2005 letter from DUHS officials to hospital staff.

The complaint against Aramark cites a mandatory arbitration agreement stipulated in the contract with Aramark that requires the company to compensate DUHS for costs, damages and expenses that would stem from a negligence of duties.

"DUHS has paid more than its pro-rata share of the common liability arising out of the hydraulic fluid incident and is, therefore, entitled to contribution pursuant to N.C. Gen. Stat. 1B-1 from Aramark, which has paid nothing," the complaint reads.

Aramark Management Services has not been the target of patients' lawsuits regarding the incident.

Dozens of patients filed suit June 17 against Cardinal Health, which sold and delivered cleaning supplies to the hospitals, and Steris Corporation, which made the sterilization washers to clean the equipment.

The patients who were potentially exposed to the tainted supplies are seeking more than $30,000 each from the companies for compensatory, treble and punitive damages. Some spouses of the patients are also seeking $10,000 in damages.

Aramark employs ServiceMaster Management Services as a provider of professional facilities management to hospitals and healthcare facilities, including DUHS.

The University had teamed with Philadelphia-based ARAMARK, Corp., of which Aramark Management Services is a part, as a campus food vendor for five years. ARAMARK was replaced by Charlotte-based Compass Group in Fall 2006 to manage Duke dining, following criticism from students and administrators over providing poor quality and services, overpricing foods and absorbing profits instead of redirecting them to Duke dining.

DUHS created a Web site-http://hydraulicfluidfacts.dukehealth.org-in 2005 in response to concerns about the hydraulic fluid mix-up. Officials state on the site that in order to prevent similar occurrences in the future, DUHS has established systems to track and monitor containers and have suppliers alert users when they notice that container seals are broken.

Additionally, Duke created a new policy which requires that all containers 5 gallons or larger be destroyed after use and that labels on open containers be defaced with a black marker.

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