Last week Suffolk County Supreme Court Justice Sanford N. Berland lambasted a local gynecologist for attempting to enforce an agreement his medical group demanded be signed by all their patients restricting the right to sue and limiting their selection of medical experts. Dr. Benjamin Schwartz of Gynecologic Oncology, PLLC, performed a hysterectomy on a patient and 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 to sign, including an "Agreement as to Resolution of Concerns". This agreement provided that: 1) any medical malpractice lawsuit against them 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.

In a lengthy decision Justice Berland explained that this agreement violated the public policy of New York which already has detailed laws regulating the filing and prosecution of medical malpractice claims holding that the Agreement was unenforceable. "To the extent...the Agreement is intended to override or, if enforced, would have the effect of disrupting the mechanisms the Legislature has enacted...to regulate the assertion and litigation of medical malpractice claims and to deter... the interposition of frivolous medical malpractice claims and defenses, by substituting different - and potentially biased - mechanisms that afford neither the procedural safeguards nor the substantive standards the Legislature intended to govern medical malpractice claims, the provision necessarily violates public policy and is unenforceable." Mercado v. Schwartz, 2019 WL 167050