Many doctors and medical facilities ask patients to sign consent forms prior to rendering treatment. Such forms usually grant permission to perform certain services and cover the risks associated with such care. In some instances, though, they may contain other provisions, such as a waiver of certain rights with regard to medical malpractice claims. Such terms may violate public policy, however, and therefore the courts may decline to enforce them, as shown in a recent New York ruling. If you were injured by a negligently performed procedure and have questions about your rights, it is smart to meet with a Syracuse medical malpractice lawyer as soon as possible.
The Plaintiff’s Harm
It is alleged that the plaintiff presented to the defendant with complaints of back pain, rashes, swelling, and other symptoms that were ultimately determined to be caused by a contraceptive device that had been inserted in her fallopian tube. The defendant advised the plaintiff that she needed to undergo a hysterectomy to remove the device.
It is reported that the patient decided to undergo a hysterectomy. Prior to the procedure, the defendant’s staff presented her with numerous forms she was asked to complete and sign. Among other things, the forms included an agreement that stated that if she pursued a medical malpractice case against the defendant, she would only hire certain witnesses and that such witnesses would be subject to deposition at least 120 days before trial.
Allegedly, the defendant pierced the plaintiff’s intestines during the procedure. She subsequently filed a medical malpractice case against him and moved for a declaration that the agreement was void and enforceable. The defendant opposed the motion, but the court ruled in favor of the plaintiff. The defendant then appealed.
Waivers in Medical Malpractice Cases
On appeal, the court upheld the trial court ruling. In doing so, it agreed with the plaintiff’s assertion that the agreement was against public policy because it granted the parties the right to depose each other’s witnesses. The court explained that, under New York law, parties cannot incorporate into their contracts any provisions that are illegal, unconscionable, restricted by statute, or violate public policy.
Further, parties can agree to waive statutory rights unless they involve a question of public policy. The court noted that New York law reflected the legislature’s intent to limit the disclosure of experts in medical malpractice case to prevent such experts from being discouraged from testifying. As the provisions in the agreement obviated the legislature’s intent, it violated public policy. Therefore, the court deemed it unenforceable.
Talk to a Trusted Syracuse Medical Malpractice Lawyer
Doctors have a duty to provide their patients with competent care, and they generally cannot avoid liability for failing to uphold their duties by asking their patients to waive their rights. If you suffered injuries following a negligently performed surgery, you might be owed damages, and you should talk to an attorney. The trusted Syracuse medical malpractice attorneys of DeFrancisco & Falgiatano Personal Injury Lawyers are mindful of the devastation preventable medical errors can cause, and if you hire us, we will fight to help you seek justice for your losses. You can contact us through our form online or by calling us at 315-479-9000 to set up a meeting.