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)

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Go to Top