Some years ago, we examined whether exculpatory releases signed by patients at the behest of health care providers prior to treatment are enforceable in subsequent medical malpractice actions. See Moore and Gaier, Courts Disfavor Exculpatory Releases, NYLJ Oct. 6, 1998, p. 3. A review of the pertinent decisional law indicated that such agreements have been held unenforceable and void as against public policy. See Rosenthal v. Bologna, 211 A.D.2d 436 (1st Dept. 1995); Ash v. New York University Dental Center, 164 A.D.2d 366 (1st Dept. 1990); Abramowitz v. New York University Dental Center, Col. of Dentistry, 110 A.D.2d 343 (2d Dept. 1985); Morabito v. New York University Dental Center. 104 A.D.2d 1064 (1st Dept. 1984); Dedely v. Kings Highway Hosp. Ctr., 162 Misc.2d 444 (Sup. Ct., Kings Co. 1994). Cf. Boll v. Sharpe & Dohme, 307 N.Y. 646 (1954), aff'g, 281 App. Div. 568 (1st Dept. 1953). There have been no developments in the law regarding such releases since that column was published.

Earlier this year, however, a trial level decision addressed what appears to be a new approach by some health care providers to impede potential malpractice actions before rendering treatment. Prior to undergoing surgery, the plaintiff in Mercado v. Schwartz, 63 Misc.3d 362 (Sup. Ct., Suffolk Co., 2019), signed a form purporting to impose various requirements on any subsequent malpractice actions. In a detailed analysis reminiscent of the decisions assessing exculpatory releases, Justice Sanford N. Burland concluded that the challenged provisions were unenforceable. That opinion is the subject of this column.

The injured plaintiff had been experiencing various physical complaints that at one point had been diagnosed as early stage non-Hodgkin's lymphoma. However, she subsequently learned that women who had been using the same type of birth control device were having the same symptoms. The device is a metal coil implanted in each fallopian tube, which are intended to remain in the patient permanently. After consulting with her gynecologist and an allergist, the patient was informed that if she thought her symptoms were from the device, she should have them removed and that this could only be done through a hysterectomy. She went to defendant Dr. Schwartz at defendant Island Gynecologic Oncology (Island) for that surgery.

The patient indicated that during the pre-surgical consultation with Dr. Schwartz, she was provided with a stack of papers to complete and sign in order to be treated. She skimmed the forms, filled out the areas that needed information, and signed them. Among the forms she signed was a document referred to in the opinion as "the Agreement form." A review of this document reveals that it is a single sheet of paper on Island letterhead, immediately below which is the title "Agreement as to Resolution of Concerns." (We thank Roy Scaffidi, who represents the plaintiffs in Mercado, for providing a copy of the form.) The first two paragraphs identify the patient as "Patient/Guardian," and Dr. Schwartz, his PLLC and Island as "Physician." The first substantive paragraph states:

I understand that I am entering into a contractual relationship with the Physician for professional care. I further understand that meritless and frivolous claims for medical malpractice have an adverse effect upon the cost and availability of medical care to patients and may result in irreparable harm to a medical provider.  As additional consideration for professional care provided to me by the Physician, I, the Patient/Guardian, agree not to initiate or advance, directly or indirectly, any meritless or frivolous claims of medical malpractice against the Physician.

The second substantive paragraph reads:

Should I initiate or pursue a meritorious medical malpractice claim against Physician, I agree to use as expert witnesses (with respect to issues concerning the standard care), only physicians who are board certified by the American Board of Medical Specialties in Obstetrics and Gynecology with subspecialty certification in Gynecologic Oncology. Further, I agree that these physicians retained by me or on my behalf to be expert witnesses will be in good standing of the American Board of Obstetrics and Gynecology.

The form then contains the following provisions, which were agreed to by both the patient and physician:

I agree the expert(s) will be obligated to adhere to the guidelines or code of conduct defined by the American Board of Obstetrics and Gynecology and that the expert(s) will be obligated to fully consent to formal review of conduct by such society and its members.

I agree to require any attorney I hire and any physician hired by me or on my behalf as an expert witness to agree to these provisions.

The form further provides:

Each party agrees that his/her counsel shall have the right and be free to depose the other party's expert witness(es) at least 120 days before any schedule trial date.

Each party agrees that a conclusion by a specialty society affording due process to an expert will be treated as supporting or refuting evidence of a frivolous or meritless claim.

The form also provides that its provisions are binding and apply to any claim for medical malpractice, regardless of the theory of recovery, and an "acknowledgment" that "monetary damages may not provide an adequate remedy for breach of this Agreement," that a breach may result in "irreparable harm to Physician's reputation and business," and that specific performance and/or injunctive relief would be allowed in the event of a breach. The form was signed by both the patient and the doctor, purportedly on the same date.

The doctor subsequently performed a robotically assisted laparoscopic total hysterectomy, bilateral salpingectomy and ovarian cystectomy. The plaintiffs allege that during the surgery, the doctor pierced the patient's small intestine and failed to timely recognize that he had done so, and that as a result, she suffered severe complications and surgical procedures.

The lawsuit was commenced in 2014. Discovery proceeded, during which the plaintiff and doctor were both deposed. Sometime after the doctor's deposition (which was conducted in 2016), his counsel apparently indicated that they would seek to invoke the provisions of the Agreement form. Thereafter, the plaintiffs moved for an order declaring the agreement void and unenforceable. The defendant doctor and his group cross-moved for an order declaring the agreement a valid and enforceable contract and directing the plaintiffs to comply with its terms.

The court found the enforceability of the agreement, as challenged by the plaintiffs, "is informed by the overarching 'agreement'" not to initiate a frivolous malpractice claim, and focuses on the provisions that if the patient brings an action: (1) she would be required to use as expert witnesses physicians who are board certified by the American Board of Obstetrics and Gynecology with a sub-certification in Gynecologic Oncology, and that these physicians will be in good standing with that organization; (2) the parties may depose the opposing party's experts prior to trial; and (3) a conclusion by "a specialty society affording due process to an expert" will be treated as supporting or refuting evidence of a frivolous claim. The court then analyzed each of these provisions with regard to whether they are enforceable.

It found that the first set of provisions—the ones placing restrictions on expert witnesses—violates public policy. While noting that parties may stipulate away statutory rights, the court observed that stipulations will be deemed invalid if found to violate public policy. To that end, the court noted that the plaintiffs relied on Ash v. New York University Dental Center, 164 A.D.2d 366 (1st Dept. 1990), one of the cases holding pretreatment exculpatory releases to be unenforceable as against public policy, while the defendants attempted to draw an analogy between their pretreatment form and arbitration agreements that are enforceable regardless of whether they violated state public policies because those state laws are preempted by the Federal Arbitration Act—an analogy that is patently inapt, since this case did not implicate any federal statute.

The court found that by requiring experts to be subcertified in gynecologic oncology, the agreement improperly limits the patient's right to designate experts with qualifications pertinent to the standards of care at issue in the action.

[This] would mean that plaintiffs would be prevented from designating as experts physicians whose qualifications meet all the legal criteria for the giving of expert testimony … but whose lack of certification in an extraneous or irrelevant area of practice would contractually bar them from testifying. Worse, it could mean that the only available expert witnesses plaintiffs might be contractually permitted to call to testify on their behalf on those issues could be physicians who cannot give relevant and receivable expert testimony in this case because they lack the necessary training and experience to testify with respect to those matters that are relevant to the plaintiffs' claims. Indeed, even if such witnesses were permitted to testify, their testimony might well not be considered persuasive by the jury because of the seeming irrelevancy of the subspecialty in which the witnesses practice to the medical issues in the case.

Having noted that determinations regarding an expert's qualifications are within the trial court's discretion, the court found that the agreement would effectively strip the court of that role. It concluded that this "necessarily violates public policy," explaining:

To hold otherwise would be to endorse a distortion in the process of adjudicating professional liability claims in general, and, medical malpractice claims, in particular, by permitting providers of professional services, including those who … enjoy the shared benefits of professional licensing laws and regulations that both establish the qualifications for but also serve to limit those who may practice in a given field, … to impose artificial, and in given cases, inapposite barriers to being held to providing such services in accordance with applicable professional and legal standards.

Citing the certificate of merit requirement of CPLR 3012-a and the decision striking the exculpatory release in Ash, the court found:

[E]ven if there could be instances in which agreements limiting the selection of expert witnesses somehow would be valid, the Agreement form at issue here, between a physician and his patient, purporting to impose a requirement that not only restricts, but potentially defeats, the patient's ability to prosecute a medical malpractice claim that is meritorious and supported by a statutorily sufficient medical opinion …, necessarily "implicates both the State's interest in the health and welfare of its citizens, as well as the special relationship between physician and patient" such that "it would be against public policy to uphold such an agreement."

The court also found that the agreement would "conflict with the overriding public interest" of the provision of CPLR 3101(d)(1)(i) that the names of experts in malpractice actions may be omitted, citing its legislative history indicating that provision was to prevent "friends or associates" of a defendant from "attempting to deter the plaintiff's medical expert from giving testimony against the defendant." It further found that the expert witness provision of the agreement "serves both to narrow the pool of otherwise qualified medical experts who could be retained by plaintiffs and to increase the likelihood that any retained medical expert will be familiar with Dr. Schwartz or his close associates." For all of these reasons, the court concluded that the effects of the provisions of the agreement limiting experts available to the plaintiffs "conflicts with public policy."

The court also found that the second challenged provision of the agreement—giving a party the right to depose an opposing party's experts—was superceded by the preliminary conference stipulation and order and was waived by the defendants. It noted that the order specified that expert witness disclosure would be conducted pursuant to CPLR 3101, which permits depositions of experts only upon a mutual offer and request by both parties. It further noted that neither that order, nor any subsequent stipulation of the parties, referenced the agreement, and that defense counsel never indicated they would seek to invoke any provision of the agreement until after the defendant doctor's deposition. "Given the ample scope of the expert disclosure afforded by CPLR §3101(d), as well as the safeguards it provides to the parties, even if the Agreement form were otherwise enforceable—and it is not," the court concluded, it would be "improvident at this juncture" to replace the provisions of the preliminary conference order regarding expert disclosure with the provision in the agreement.

The court found that the third challenged provision—that a conclusion by "a specialty society affording due process to an expert will be treated as supporting or refuting evidence" of a frivolous claim—is unenforceable for two reasons. First, the court found, it is "vague and ambiguous" in several respects. It does not designate a specific specialty society charged with rendering a conclusion, or provide a procedure or criteria for doing so. It gives no guidance as to the rules and procedures the specialty society would follow in rendering a conclusion, whether an appeal would lie from the conclusion, how the costs for the specialty society proceeding would be paid, the forum of any proceeding in which the specialty society's conclusion would be treated as evidence, or the purpose for which it would be received in that forum. The court noted that the defendant doctor testified that he discussed none of these matters with the patient when the agreement was presented to her and that he himself did not know the answers to the questions raised by the specialty society provision. Since "neither the court nor the parties can reasonably ascertain how to interpret and apply the third challenged provision," it was "unenforceable as vague and ambiguous."

Second, the court found that this provision violates public policy. Referring again to the certificate of merit requirement of CPLR 3012-a, as well as the frivolous claims provisions of CPLR 8303-a, the court found that New York provides "[a]mple safeguards" to deter the commencement and prosecution of frivolous medical malpractice claims, a remedy if such a claim is brought, and a procedure to be employed to make the appropriate determinations. This "network of statutory provisions," the court found, "represents a balancing by the Legislature" regarding the various interests involved with medical malpractice litigation. "To the extent the third challenged provision of the Agreement form is intended to override or, if enforced, would have the effect of disrupting that balance by replacing the mechanisms the Legislature has enacted …, the provision necessarily violates public policy and is unenforceable."

This case exposes a novel, and entirely improper, effort by a health care provider to limit the rights of patients to seek redress for negligent medical care. While not total exculpation, it attempted to drastically skew the playing field in favor of the defense in a malpractice action by having the patient agree to draconian conditions contained on one sheet in a pile of paperwork that patients are told to complete before undergoing a medical procedure. The court provided an excellent analysis of the pertinent law, policies and equities in holding that an effort is against public policy and unenforceable.

Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.