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Mercado v. Schwartz

Supreme Court, Suffolk County

January 10, 2019

Tiffany Mercado and Raul Mercado, Plaintiffs,
v.
Benjamin M. Schwartz, M.D., Island Gynecologic Oncology, PLLC, and John T. Mather Memorial Hospital, Defendants.

          PLAINTIFFS' ATTORNEY: SCAFFIDI & ASSOCIATES

          DEFENDANTS' ATTORNEYS: DORF & NELSON LLP Attorneys for Benjamin M. Schwartz, M.D. & Island Gynecologic Oncology, PLLC

          PERRY, VAN ETTEN, ROZANSKI, LLP Attorney for John T. Mather Memorial Hospital

          HON. SANFORD NEIL BERLAND, A.J.S.C.

         Upon the reading and filing of the following papers in this matter: (1) Notice of Motion, by plaintiffs, dated; (2) Notice of Cross-Motion, made by defendants, dated February 5, 2018; (3) Affirmation in Opposition, made by plaintiffs, dated February 13, 2018; (4) Reply Affirmation, made by defendants, dated March 5, 2018; it is

         ORDERED, ADJUDGED and DECLARED that plaintiffs' motion sequenced 002 for an order pursuant to CPLR §§ 3001 and 3126 declaring the document dated November 14, 2013 and titled "AGREEMENT AS TO RESOLUTION OF CONCERNS" void and unenforceable is granted; and it is further

         ORDERED, ADJUDGED and DECLARED that the cross-motion of defendants Benjamin M. Schwartz, M.D. and Island Gynecologic Oncology, PLLC, sequenced 003, for an order pursuant to CPLR §§ 3001, 3124 and 3126 declaring the agreement described herein valid and enforceable is denied; and it is further

         ORDERED that the attorneys-of-record are directed to appear for a previously scheduled compliance conference before Part 6 on Tuesday, February 26, 2019 at 9:30am at the Supreme Court located at One Court Street, Riverhead, New York.

         This is an action for damages stemming, inter alia, from alleged medical malpractice in the performance of a robotically assisted laparoscopic total hysterectomy, bilateral salpingectomy and ovarian cystectomy upon plaintiff Tiffany Mercado on January 9, 2014. The defendants are Benjamin M. Schwartz, M.D. ("Dr. Schwartz"), the physician who performed the procedure; Dr. Schwartz's medical practice at the time of Mrs. Mercado's surgery, Island Gynecologic Oncology, PLLC ("Island"); and John T. Mather Memorial Hospital, the hospital where Mrs. Mercado's surgery was performed. The plaintiffs allege that Dr. Schwartz performed the procedures negligently, among other things both piercing Mrs. Mercado's small intestine and failing timely to recognize that he had done so, as a result of which Mrs. Mercado suffered a series of serious, painful and potentially life-threatening complications and was required, among other things, to undergo further surgical interventions, procedures and treatments.

         The matter is now before the court on the motion of Mrs. Mercado and her husband, plaintiff Raul Mercado, and the cross-motion of Dr. Schwartz and Island for opposing declaratory relief with respect to the enforceability, vel non, of a form, entitled "Agreement as to Resolution of Concerns" (the "Agreement form"), signed both by Mrs. Mercado and by Dr. Schwartz prior to Mrs. Mercado's surgery, that purports both to restrict Mrs. Mercado's right to "initiate or pursue" a medical malpractice claim against Dr. Schwartz and, if she does so, to affect how such a medical malpractice claim may be prosecuted. More specifically, under the provisions of the Agreement form, Mrs. Mercado is, first, prohibited from initiating or advancing any medical malpractice claim against Dr. Schwartz - regardless of the injury claimed, the departure from accepted medical standards of care alleged or the legal theory advanced - that is "meritless" or "frivolous," not necessarily as determined by the tribunal in which the claim is brought, but based at least in part, if not entirely, upon the "conclusion" of an unnamed "specialty society affording due process to an expert." Second, if Mrs. Mercado brings a medical malpractice claim against Dr. Schwartz that is "meritorious," she is required to "use as expert witnesses (with respect to issues concerning the standard of care) only physicians who" - like Dr. Schwartz, and again without regard to the injury claimed, the departure from good and acceptable medical care alleged or the legal theory advanced - "are board certified by the American Board of Medical Specialties in Obstetrics and Gynecology with a subspecialty certification in Gynecologic Oncology." In addition, the Agreement form also provides that in the event a medical malpractice claim is brought by Mrs. Mercado, both Dr. Schwartz and Mrs. Mercado may depose the other side's expert witnesses in advance of any trial. Other clauses in the Agreement form recite, inter alia, that Mrs. Mercado's experts will be "obligated to adhere to the guidelines or code of conduct defined by the American Board of Obstetrics and Gynecology" and "fully consent to formal review of conduct by such society and its members"; that Mrs. Mercado will require any attorney or physician expert witness hired by Mrs. Mercado to agree to the Agreement form's provisions; that Dr. Schwartz "also agrees to exactly the same above-referenced stipulations"; and that breach of the agreement "may result in irreparable harm to Dr. Schwartz's reputation and business" and that in the event of such breach, specific performance and/or injunctive relief" will be allowed. By her motion, Mrs. Mercado contends that the Agreement form impermissibly purports to limit her right to bring and her ability to prosecute this action and asserts that at the time she signed the Agreement form, she did not understand its import. By their cross-motion, Dr. Schwartz and Island contend that the Agreement form constitutes a valid and enforceable contract.

         Background

         In 2012, plaintiff Tiffany Mercado began to experience a constellation of physical complaints, including rashes, swelling, foot discoloration, lower back pain and night sweats. After a series of medical consultations and diagnostic procedures, she was informed, in early 2013, that she was suffering from early stage non-Hodgkin lymphoma. Subsequently, she saw a televison news story about women who were experiencing symptoms similar to hers and joined a Facebook community group called "Essure," after the same birth control device that she had implanted some years earlier [1]. She contacted the manufacturer of the device and also discussed her concern that her Essure implants were causing her symptoms with her then gynecologist, Dr. Petraco. Dr. Petraco told her that he had not heard of any problems with Essure, and she asked if he would "research it" and contact the company "as a doctor." Dr. Petraco agreed to "look into it." Mrs. Mercado called Dr. Petraco several times "to see what his response to it was" and then ran into him at a soccer tournament in Pennsylvania, at which time he informed her that he had contacted the manufacturer and "spoke with his group about it," and that they had decided to no longer use Essure "because they didn't have backing that I couldn't experience the symptoms." He told her that the only way to remove the device was though hysterectomy and recommended that she see an allergist to determine if she was allergic to nickel. She consulted with an allergist, who performed a "foot panel workup" but not a nickel allergy test, which she described as a "long intensive test" that would take more than a month to complete, and instead recommended that if Mrs. Mercado thought her symptoms were related to the Essure devices, the devices should "come out." She called Dr. Petraco several times and then ran into him again, at which time she told him that she had seen the allergist and had made an appointment with Dr. Schwartz, of whom she had learned through friends.

         According to the affidavit of Mrs. Mercado offered in support of the current motion, on November 14, 2013, during her pre-surgical consultation with Dr. Schwartz, she was provided with a "stack of papers" that she was required to complete and sign in order to be treated by Dr. Schwartz and his practice. She "skimmed the forms, filled out the areas that need [sic] to be filled out, and then... signed them." At her deposition, Mrs. Mercado testified that "there were quite a few papers" and that other than a consent to surgery form, she did not "remember exactly the ones" that she signed. Nonetheless, Mrs. Mercado does not dispute that she signed the Agreement form; she does, however, contend that it should not be enforced in the current action because it purports, impermissibly, to limit her right to bring and prosecute the claims she has asserted against Dr. Schwartz and Island.

         The Motion and Cross-Motion

         Mrs. Mercado and her husband, plaintiff Raul Mercado (who asserts a derivative claim), move, pursuant to CPLR §§ 3001 and 3126, for an order declaring the Agreement form void and unenforceable. In support of their motion, plaintiffs argue that the Agreement is a contract of adhesion and is unconscionable, that it contravenes public policy and deprives Mrs. Mercado of rights conferred by statute, is ambiguous, is waived and is otherwise defective. [2]

         Defendants [3] cross-move for an order pursuant to CPLR §§ 3001, 3124 and 3126 for an order declaring the Agreement to be a valid and enforceable contract and directing plaintiffs to comply with its terms. In support of their motion, defendants aver that contract principles permit parties to establish a framework for resolving future disputes, public policy is not contravened, the Agreement is neither unconscionable nor a contract of adhesion, and that no terms in the agreement were waived.

         A cause of action for declaratory relief accrues when there is a bona fide, justiciable controversy between the parties (see CPLR 3001; Zwarycz v Marnia Const., Inc., 102 A.D.3d 774, 776, 958 N.Y.S.2d 440');">958 N.Y.S.2d 440 [2d Dept 2013]; Waterways Dev. Corp. v Lavalle, 28 A.D.3d 539, 540, 813 N.Y.S.2d 485');">813 N.Y.S.2d 485 [2d Dept 2006]). "The dispute must be real, definite, substantial, and sufficiently matured so as to be ripe for judicial determination" (Zwarycz v Marnia Const., Inc., supra at 776; Waterways Dev. Corp. v Lavalle, supra at 540). "A dispute matures into a justiciable controversy when a [litigant] receives direct, definitive notice that [his or her adversary] is repudiating [the litigant's] rights" (Zwarycz v Marnia Const., Inc., supra at 776).

         The dispute between the parties over the enforceability of the Agreement form in the current action is necessarily defined by the challenge to it raised by the Mercados, which is, in turn, informed by the overarching "agreement" of the patient, set forth in the form's opening substantive paragraph, "not to initiate or advance, directly or indirectly, any meritless or frivolous claims of medical malpractice against the Physician," and focuses on the following three provisions of the form (emphasis supplied):

[FIRST [4] ] 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 a 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.
[SECOND [5] ] 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 [sic] trial date.
[THIRD [6] ] 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.

         Each of these specifically challenged provisions will be discussed in turn.

         1. The purported restriction on expert witness selection violates public policy. It does not appear that New York Courts have previously addressed the public policy ramifications of an agreement between a patient and doctor that takes from the province of the Court the responsibility for making determinations with respect to the qualifications of expert witnesses and places restrictions on the patient's exercise of her right ...


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