Mercado v. Schwartz
| Decision Date | 17 August 2022 |
| Docket Number | 2019-01617,Index No. 64748/14 |
| Parties | Tiffany MERCADO, et al., respondents, v. Benjamin M. SCHWARTZ, etc., et al., appellants, et al., defendant. |
| Court | New York Supreme Court — Appellate Division |
209 A.D.3d 30
174 N.Y.S.3d 82
Tiffany MERCADO, et al., respondents,
v.
Benjamin M. SCHWARTZ, etc., et al., appellants, et al., defendant.
2019-01617
Index No. 64748/14
Supreme Court, Appellate Division, Second Department, New York.
Argued—March 29, 2022
August 17, 2022
Dorf & Nelson LLP, Rye, NY (Anna Schwartz, Katherine W. Dandy, and John Lyddane of counsel), for appellants.
James F. Scaffidi, New York, NY, for respondents.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.
OPINION & ORDER
MALTESE, J.
I. Introduction
The issue on this appeal is whether the defendants Benjamin M. Schwartz, M.D., and Island Gynecologic Oncology, PLLC (hereinafter together the defendants), may enforce a provision in an agreement that the defendant physician's receptionist asked the injured plaintiff to sign among other routine medical releases prior to undergoing surgery. Pursuant to this provision, if a patient commenced a medical malpractice action against the defendant physician, each party's counsel would have the right to depose the other parties’ expert witness(es) at least 120 days before trial. We hold that this provision is unenforceable as against public policy and, in any event, the defendants waived the right to enforce the provision. Furthermore, the entire agreement is unenforceable because the Supreme Court found certain other provisions to be unenforceable, the defendants do not challenge the court's holding regarding those provisions on appeal, and those provisions are not severable from the remainder of the agreement, including the provision at issue on appeal. Therefore, we affirm the order insofar as appealed from.
II. Relevant Facts and Procedural History
In 2012, the plaintiff Tiffany Mercado (hereinafter the patient) began experiencing swelling, rashes, foot discoloration, night sweats, and low back pain. She
believed that the symptoms were a side effect of the Essure contraceptive device. The Essure device is a metal coil that is placed into each of the fallopian tubes and causes an inflammatory reaction resulting
in the closure of the fallopian tubes (see Aronov v. Kanarek, 166 A.D.3d 574, 88 N.Y.S.3d 73 ). In November 2013, the patient consulted with the defendant Benjamin M. Schwartz, M.D., regarding the removal of the Essure devices. Dr. Schwartz informed her that a hysterectomy would be necessary to remove the devices.
The patient decided to undergo a hysterectomy in order to remove the devices. While the patient was in the waiting area of Dr. Schwartz's office, she was provided with "a bunch" of papers that she was required to complete before undergoing surgery, including a consent form and an "Agreement as to Resolution of Concerns" (hereinafter the Agreement), which is at issue on this appeal. The Agreement apparently was provided to the patient for signature without any discussion or explanation or any consultation with an attorney. The record discloses that the patient signed the Agreement dated November 14, 2013.
The Agreement provided:
"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.
"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 Specialities 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.
"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.
"In further consideration, Physician also agrees to exactly the same above-referenced stipulations.
"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[d] 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.
"Patient/Guardian and Physician agree that this Agreement is binding upon them individually and their respective successors, assigns, representatives, personal representatives, spouses and other dependents.
"Physician and Patient/Guardian agree that these provisions apply to any claim
for medical malpractice whether based on a theory of contract, negligence, battery or any other theory of recovery....
"Patient/Guardian and Physician acknowledge that monetary damages may not
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