Appeals Court Declares OB/GYN Group's Mandatory Patient Waiver of Legal Rights Void On Public Policy Grounds
On August 17, 2022, the Appellate Division, Second Department upheld the ruling of Suffolk County Supreme Court Justice Sanford N. Berland, who in 2019 lambasted a gynecologist for attempting to enforce an agreement his medical group demanded be signed by all their patients restricting their right to sue and limiting their selection of medical experts. Dr. Benjamin Schwartz of Gynecologic Oncology, PLLC, performed a hysterectomy on a patient, allegedly perforated her colon and failed to timely recognize that he had done so. Prior to the procedure, the patient was presented with a stack of papers by the physician's receptionist to sign, including an "Agreement as to Resolution of Concerns". This agreement provided that: 1) any medical malpractice lawsuit against the Ob/Gyn group must first be screened by a "special society" to weed out frivolous claims; 2) the patient could only retain medical experts who were board certified in Obstetrics and Gynecology with a subspecialty certification in Gynecologic Oncology; and, 3) during the malpractice suit either side may conduct a deposition of the other side's medical experts. The ob/gyn and his medical group appealed contending it is appropriate for them to demand that patient's voluntarily surrender their procedural legal rights as a quid quo pro of their wonderful services.
The appellate court disagreed with the doctors and stated that these provisions were "unenforceable as against public policy" even if the patient voluntarily signed the waiver. At his deposition, Dr. Benjamin Schwartz testified that if a patient refused to sign the waiver of rights he would not perform the operation, absent a medical emergency. The appellate court expressed its disdain for those physician's looking to take advantage of their patients: "The Agreement contains no severability clause, its main objective is to restrict the rights that the patient would ordinarily have pursuant to case law and the CPLR in prosecuting her medical malpractice claim...." Mercado v Schwartz, 209 A.D.3d 30 (2nd Dept 2022)
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