Mercadov.Schwartz

Supreme Court, Suffolk CountyJan 10, 2019
92 N.Y.S.3d 582 (N.Y. Sup. Ct. 2019)
92 N.Y.S.3d 58263 Misc. 3d 3622019 N.Y. Slip Op. 29010

14-0064748

01-10-2019

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, 747 Third Avenue, Suite 10B, New York, NY 10017 DEFENDANTS' ATTORNEYS: DORF & NELSON LLP, Attorneys for Benjamin M. Schwartz, M.D. & Island Gynecologic Oncology, PLLC, 555 Theodore Fremd Avenue, Rye, NY 10580, PERRY, VAN ETTEN, ROZANSKI, LLP, Attorney for John T. Mather Memorial Hospital, 225 Broadhollow Road, Suite 430, Melville, NY 11747


PLAINTIFFS' ATTORNEY: SCAFFIDI & ASSOCIATES, 747 Third Avenue, Suite 10B, New York, NY 10017

DEFENDANTS' ATTORNEYS: DORF & NELSON LLP, Attorneys for Benjamin M. Schwartz, M.D. & Island Gynecologic Oncology, PLLC, 555 Theodore Fremd Avenue, Rye, NY 10580, PERRY, VAN ETTEN, ROZANSKI, LLP, Attorney for John T. Mather Memorial Hospital, 225 Broadhollow Road, Suite 430, Melville, NY 11747

Sanford N. Berland, J.It isORDERED, 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 . 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.

The Essure device is, in broad terms, a metal coil that is inserted into each fallopian tube, by catheter, to induce a sterile inflammatory reaction and blockage of the tube (see Aronov v. Kanarek , 166 A.D.3d 574, 88 N.Y.S.3d 73 [2d Dept. 2018] ). It is described as a form of permanent birth control (see Norman v. Bayer Corp., 3:16-CV-00253 (JAM), 2016 WL 4007547, at *1 [D Conn. July 26, 2016] ), and provides a non-surgical alternative to tubal ligation.

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.

Among other things, plaintiffs argue that because the party term "Physician," is expressly defined in the Agreement form to include only "any physicians and physician care extenders employed by Benjamin Schwartz, MD, Schwartz Gynecologic Oncology, PLLC and/or Island Gynecologic Oncology," the Agreement form, "as literally drafted, does not apply to services rendered by Dr. Schwartz to Mrs. Mercado," as both Dr. Schwartz and Island denied, in their respective answers to the Mercados' verified complaint, that Dr. Schwartz was "employed" by Island and Dr. Schwartz testified, at deposition, that he was employed by another practice not referenced in the Agreement form, South Bay Obstetrics and Gynecology, prior to founding Island.

Defendants 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.

Defendant John T. Mather Memorial Hospital has not taken a position with respect to the enforceability of the above mentioned Agreement. Accordingly, all references to defendants" in this decision refer only to defendants Benjamin M. Schwartz, M.D. and Island Gynecologic Oncology, PLLC.

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 [2d Dept. 2013] ; Waterways Dev. Corp. v. Lavalle , 28 A.D.3d 539, 540, 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, 958 N.Y.S.2d 440 ; Waterways Dev. Corp. v. Lavalle , supra at 540, 813 N.Y.S.2d 485 ). "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, 958 N.Y.S.2d 440 ).

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 ] 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.

This is the second substantive paragraph, or provision, of the Agreement form, the paragraphs of which are unnumbered. Bracketed ordinal numbering is provided here for ease of reference only.

[SECOND ] 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.

This is the sixth substantive paragraph of the Agreement form.

[THIRD ] 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.

This is the seventh substantive paragraph of the Agreement form.

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 to designate an expert or experts whose qualifications are relevant to the standard of care issues present in the case.

Although it has long been said that "[p]arties by their stipulations may in many ways ... stipulate away statutory, and even constitutional rights" ( In re Malloy's Estate , 278 N.Y. 429, 433, 17 N.E.2d 108 [1938] ), the court is also cognizant of the fact that such deference is limited where "a question of public policy is involved" ( In re Validation Review Assocs. , 223 A.D.2d 134, 646 N.Y.S.2d 149 [2d Dept. 1996] ; Law Off. of Thaniel J. Beinert v. Litinskaya , 43 Misc.3d 1205(A), 2014 WL 1317017 [Civ. Ct. 2014] ). An otherwise unambiguous agreement will be invalid "if it is found to violate public policy either by way of conflicting with an overriding public interest or because it constitutes an abuse of a special relationship between the parties" ( Ash v. New York Univ. Dental Ctr. , 164 A.D.2d 366, 369, 564 N.Y.S.2d 308 [1st Dept. 1990] ; see Ciofalo v. Vic Tanney Gyms, Inc. , 10 N.Y.2d 294, 297, 220 N.Y.S.2d 962, 177 N.E.2d 925 [1961] ; DeVito v. New York Univ. Coll. of Dentistry , 145 Misc.2d 144, 148, 544 N.Y.S.2d 109 [Sup. Ct. 1989] ). Whether an agreement conflicts with an overriding public interest can be discerned by looking to, among other sources, legislative intent (see New York Tel. Co. v. Pub. Serv. Com'n of State of N.Y. , 72 N.Y.2d 419, 427, 534 N.Y.S.2d 136, 530 N.E.2d 843 [1988] ; Creel v. Crown Publishers, Inc. , 115 A.D.2d 414, 415, 496 N.Y.S.2d 219 [1st Dept. 1985] ; Application of Town of Waterford , 4 A.D.2d 415, 419, 164 N.Y.S.2d 914 [3d Dept. 1957] ; Wilson v. Bd. of Ed., Union Free School Dist. No. 23, Town of Oyster Bay, Nassau County , 39 A.D.2d 965, 966, 333 N.Y.S.2d 868 [2d Dept. 1972] ).

Plaintiffs and defendants provide divergent approaches to analyzing the enforceability, vel non , of the Agreement form. Plaintiffs cite case law holding exculpatory agreements between patients and their health care providers, purporting to insulate the latter from liability for malpractice, to be unenforceable (see Ash v. New York Univ. Dental Ctr. , supra at 368, 564 N.Y.S.2d 308 [agreement between patient and dental clinic prohibiting patient from maintaining a future medical or dental malpractice claim against dental clinic violates public policy and is unenforceable]; see also Creed v. United Hosp. , 190 A.D.2d 489, 492, 600 N.Y.S.2d 151 [2d Dept. 1993] ; Poag v. Atkins , 9 Misc.3d 1107(A), 2005 WL 2219689 [N.Y. Sup. Ct. 2005] ). Defendants, for their part, seek to analogize the Agreement form to those arbitration agreements that have been held to be enforceable notwithstanding blanket statutory and common-law prohibitions against arbitrating specific types of claims because such prohibitions, to the extent they are aimed at barring arbitration of such claim types per se and not at implementing state policies that are not specific to arbitration, e.g. , state policies against enforcement of unconscionable agreements, are preempted by the Federal Arbitration Act (see Marmet Health Care Center, Inc. v. Brown , 565 U.S. 530, 132 S.Ct. 1201, 182 L.Ed.2d 42 [2012] [state public policy against enforcing arbitration clauses in admission agreements between patients' family members and nursing homes, made prior to the occurrence of negligence that results in personal injury or wrongful death, preempted by FAA; cases remanded to West Virginia Supreme Court of Appeals to consider whether the arbitration clauses at issue "are unenforceable under state common law principles that are not specific to arbitration and pre-empted by the FAA"]; AT & T Mobility LLC v. Concepcion , 563 U.S. 333, 131 S.Ct. 1740, 1747, 179 L.Ed.2d 742 [2011] [cellular telephone contract; "[w]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA."] ).

As the Appellate Division has repeatedly held, "[t]he qualification of a witness as an expert is a determination within the sound discretion of the trial court" ( Kwasny v. Feinberg , 157 A.D.2d 396, 400, 557 N.Y.S.2d 381 [2d Dept. 1990] ; Smith v. City of New York , 238 A.D.2d 500, 500, 656 N.Y.S.2d 681 [2d Dept. 1997). Moreover, "[a] physician need not be a specialist in a particular field to qualify as a medical expert and any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony" ( Moon Ok Kwon v. Martin , 19 A.D.3d 664, 664, 799 N.Y.S.2d 63 [2d Dept. 2005] ; see Beizer v. Schwartz , 15 A.D.3d 433, 434, 789 N.Y.S.2d 724 [2d Dept. 2005] ; Stevens v. Bronx Cross County Med. Group, P.C. , 256 A.D.2d 165, 165, 681 N.Y.S.2d 531 [1st Dept. 1998] ; Gordon v. Tishman Const. Corp. , 264 A.D.2d 499, 502, 694 N.Y.S.2d 719 [2d Dept. 1999] ).

Here, the agreement sought to be enforced by Dr. Schwartz is between a physician and his patient and purports to limit the patient's right, in prosecuting "a meritorious medical malpractice claim against the Physician" (emphasis supplied), to designate an expert or experts whose training, experience and qualifications overall are pertinent to the giving of relevant and competent expert evidence with respect to the "standard [of] care issues" actually present in the action. In this case, application of the provision would mean that plaintiffs would be prevented from designating as experts physicians whose qualifications meet all the legal criteria for the giving of expert testimony "with respect to issues concerning the standard care [sic]" but whose lack of certification in an extraneous or irrelevant area of practice would contractually bar them from testifying. Worse, it could mean that the only available expert witnesses plaintiffs might be contractually permitted to call to testify on their behalf on those issues could be physicians who cannot give relevant and receivable expert testimony in this case because they lack the necessary training and experience to testify with respect to those matters that are relevant to the plaintiffs' claims. Indeed, even if such witnesses were permitted to testify, their testimony might well not be considered persuasive by the jury because of the seeming irrelevancy of the subspecialty in which the witnesses practice to the medical issues in the case. Thus, even if the agreement were to be interpreted to preclude the defendants from objecting to the admission of such testimony, the jury, as the ultimate determiner of the weight, if any, to be given to admitted expert testimony, might reject such testimony as unpersuasive or even incompetent.

Effectively stripping the Court of its role in passing on issues of expert witness qualification necessarily violates public policy in resolving disputes fairly and on the merits, with the Court serving as the gatekeeper in determining the admissibility vel non of expert testimony ( Kwasny , 157 A.D.2d 396, 557 N.Y.S.2d 381 ; Smith , 238 A.D.2d 500, 656 N.Y.S.2d 681 ). To hold otherwise would be to endorse a distortion in the process of adjudicating professional liability claims in general, and, medical malpractice claims, in particular, 1by permitting providers of professional services, including those who, including physicians, enjoy the shared benefits of professional licensing laws and regulations that both establish the qualifications for but also serve to limit those who may practice in a given field (see generally Semler v. Oregon State Bd. of Dental Examiners , 294 U.S. 608, 612, 55 S.Ct. 570, 572, 79 L Ed 1086 [1935] ; Wasmuth v. Allen , 14 N.Y.2d 391, 399, 252 N.Y.S.2d 65, 200 N.E.2d 756 [1964] ), to impose artificial, and in given cases, inapposite barriers to being held to providing such services in accordance with applicable professional and legal standards.

Moreover, even if there could be instances in which agreements limiting the selection of expert witnesses somehow would be valid, the Agreement form at issue here, between a physician and his patient, purporting to impose a requirement that not only restricts, but potentially defeats, the patient's ability to prosecute a medical malpractice claim that is meritorious and supported by a statutorily sufficient medical opinion (see CPLR § 3012-a ), necessarily "implicates both the State's interest in the health and welfare of its citizens, as well as the special relationship between physician and patient" such that "it would be against public policy to uphold such an agreement" ( Ash v. New York Univ. Dental Ctr. , 164 A.D.2d 366, 369, 564 N.Y.S.2d 308 [1st Dept. 1990] ). It would also conflict with the overriding public interest, expressed in CPLR § 3101(d)(1)(I), in preventing fellow physicians who are friends or associates of the defendant physician named in the medical malpractice action from attempting to deter the plaintiff's medical expert from giving testimony against the defendant. Thus, the legislative history of that provision, which allows the names of medical, dental and podiatric experts to be omitted from pre-trial disclosure requests, shows that:

CPLR Section 3101(d) was amended in 1985 with the intention of the Legislature to liberalize and expand discovery relating to trial experts. (L.1985, C. 294, Section 4; Weinstein, Korn & Miller, 3A NY Civil Practice, Section 3101.52(a), P. 31—213). Although the amendment requires a party to identify an expert witness who will be called to testify, the Legislature recognizes a unique problem regarding medical experts. There was a concern that in the close circle of the medical profession some physicians who are friends or associates of the defendant may make efforts to influence and discourage the medical doctor from giving expert testimony against their fellow physician if the expert is identified early. (McKinney's Session Laws, 1985, Volume 2, Page 3359; See 1985 Siegel Commentary C3101:29 on McKinney's CPLR § 3101 ). In recognition of this problem, the Legislature provided an exception to the disclosure provision of CPLR Section 3101(d) by permitting a party to omit the names of the medical expert in medical, dental or podiatric actions[.]

Rivera v. City of New York , 150 Misc.2d 566, 568, 569 N.Y.S.2d 870 [Sup. Ct. 1991].

The legislature's intention to permit a plaintiff in a medical malpractice action to omit the names of his or her medical experts so as to prevent defendant doctors and their associates from discouraging designated medical experts from testifying ought not to be so blithely contravened by an agreement that precludes Mrs. Mercado from retaining otherwise fully qualified expert witnesses. The first challenged provision of the agreement form, requiring that the plaintiff's medical experts share precisely the medical specialty and subspecialty board certifications of the defendant doctor, serves both to narrow the pool of otherwise qualified medical experts who could be retained by plaintiffs and to increase the likelihood that any retained medical expert will be familiar with Dr. Schwartz or his close associates. That the restriction on medical expert eligibility, if enforced, would operate to limit the patient's choice of experts based upon the experts' professional affinities independently of the exact pertinence of their specialty and subspecialty certifications to the medical and scientific matters at issue in a given case is further bolstered by Dr. Schwartz's own testimony. Dr. Schwartz, who is board certified by the American Board of Medical Specialties in Obstetrics and Gynecology with a subspecialty certification in Gynecologic Oncology, testified in his deposition that the procedure he performed on Mrs. Mercado was not oncological in nature, but offered no explanation, nor is any offered now, for restricting Mrs. Mercado's experts to those holding a subspecialty certification in Gynecologic Oncology. In any event, the effect of this provision conflicts with public policy.

Not so coincidentally, the provision in the Agreement form that follows the first challenged provision requires that any expert retained by the patient agree to submit to what Dr. Schwartz described as a disciplinary review of their testimony by the American Board of Obstetrics and Gynecology in the event "a complaint were made to the board that their testimony was in some way misleading or unethical":

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.

According to Dr. Schwartz, this provision applies to the physician's as well as the patient's experts.

2. The expert witness disclosure provision was superceded by the Preliminary Conference Stipulation and Order and was waived. In the Preliminary Conference Stipulation and Order entered in this action, dated December 17, 2015 and "So Ordered" on February 5, 2015, the parties, including Dr. Schwartz and Island, agreed, and the court ordered, that "[e]xpert witness disclosure shall be conducted pursuant to CPLR 3101." As discussed above, CPLR § 3101 at subsection (d) provides a very specific protocol for the disclosure of expert witness information, with even more specific provisions governing such disclosure in medical, dental and podiatric malpractice actions, including the procedure, set forth in subsection (d)(ii), for offering and requesting mutual oral depositions of the parties' respective expert witnesses. Nowhere in that order, nor in any subsequent stipulation of the parties, do defendants reference the Agreement form. Indeed, it is uncontroverted that defendants' counsel did not represent to plaintiffs' counsel that they would seek to invoke any provision of the Agreement form until sometime after Dr. Schwartz's May 26, 2016 deposition. Given the ample scope of the expert disclosure afforded by CPLR § 3101(d), as well as the safeguards it provides to the parties, even if the Agreement form were otherwise enforceable - and it is not, for the reasons stated supra and infra - it would be improvident at this juncture to alter the Preliminary Conference Stipulation and Order to replace its provision for expert disclosure with the second portion of the Agreement form. Nor have Dr. Schwartz or Island offered any ground that would justify the court in doing so or in otherwise relieving them of their agreement to follow the provisions of CPLR 3101 with respect to expert disclosure (see, e.g. , Golfo v. Kycia Assoc., Inc. , 45 A.D.3d 531, 533, 845 N.Y.S.2d 122 [2d Dept. 2007] [waiver "may arise by either an express agreement or by such conduct or a failure to act as to evince an intent not to claim the purported advantage"] ).

3. The third challenged provision is unenforceably vague and ambiguous and violative of public policy. As a threshold matter, the third challenged provision - 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" - is so vague and ambiguous as to render it unenforceable. Among other things, neither the provision itself nor any other provision of the Agreement form designates a specific "specialty society," or "societies," that will or could be charged with rendering "a conclusion," nor does it provide any procedure or any criteria - other than "affording due process to an expert" - for the designation or selection of such a specialty society. Further, neither the provision itself nor the Agreement form overall gives any guidance with respect to the rules and procedures the "specialty society" will follow in rendering "a conclusion" - for example, how its tribunal will be constituted; how its proceedings will be conducted; the standard of proof and how burdens of proof will be allocated; whether evidence will be received and, if so, the rules that will govern the admissibility or exclusion of evidence; the form in which the "conclusion" will be rendered; whether an appeal will lie from the "conclusion" and, if so, to what body; and how the costs, if any, of the proceedings of the specialty society will be paid - nor, crucially, does the provision identify the forum, if any, in which the "evidence" that the "specialty society's" "conclusion" will be "treated as" constituting will be used and to what end or purpose it will be received. Dr. Schwartz, the proponent of the Agreement form, testified that he discussed none of these matters with Mrs. Mercado, his patient, at the time the Agreement form was presented to her for signature, and he conceded that the provision "doesn't say" which "specialty society" will be rendering "a conclusion" and that he didn't know whether an attorney is allowed be present at the specialty society review, whether the plaintiff was required to be present, whether testimony would be taken, whether an appeal can be taken, or whether any specialty society with which he is familiar had a mechanism in place to make determinations pursuant to the Agreement form.

It should be noted that although Dr. Schwartz indicated in his deposition that the "conclusion" of the "society" would be available to either side, there does not appear to be any corresponding provision in the Agreement form that addresses a "frivolous or meritless" defense. In the context of arbitration agreements signed by patients prior to surgery or other medical treatment, courts have found that the imbalance in the relative benefits received and concessions made by the respective parties renders such agreements unenforceable for want of mutuality of consideration (Wolfman v. Herbstritt , 114 A.D.2d 955, 495 N.Y.S.2d 220 [2d Dept. 1985] ; see Dwyer v. Biddle , 274 A.D. 903, 903, 83 N.Y.S.2d 138 [2d Dept. 1948] ) or as "unconscionable and unilateral" (Miner v. Walden , 101 Misc.2d 814, 819, 422 N.Y.S.2d 335 [Sup. Ct. 1979] ).

As the Second Department has recently written:

"To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms" ( Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp. , 93 N.Y.2d 584, 589, 693 N.Y.S.2d 857, 715 N.E.2d 1050 ; see Joseph Martin, Jr., Delicatessen v. Schumacher , 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541 ). "[A] court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to" ( Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp. , 78 N.Y.2d 88, 91, 571 N.Y.S.2d 686, 575 N.E.2d 104 ). Accordingly, "[i]f an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract" ( Cobble Hill Nursing Home, Inc. v. Henry & Warren Corp. , 74 N.Y.2d 475, 482, 548 N.Y.S.2d 920, 548 N.E.2d 203 ; see Carione v. Hickey , 133 A.D.3d 811, 811, 20 N.Y.S.3d 157 ). "While there are some instances where a party may agree to be bound to a contract even where a material term is left open ... there must be sufficient evidence that both parties intended that arrangement" ( Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp. , 93 N.Y.2d at 590, 693 N.Y.S.2d 857, 715 N.E.2d 1050 [citation omitted] ). "[A]

mere agreement to agree, in which a material term is left for future negotiations, is unenforceable" ( Joseph Martin, Jr., Delicatessen v. Schumacher , 52 N.Y.2d at 109, 436 N.Y.S.2d 247, 417 N.E.2d 541 ; see New York Military Academy v. NewOpen Group , 142 A.D.3d 489, 490, 36 N.Y.S.3d 199 ;

Northern Stamping, Inc. v. Monomoy Capital Partners, L.P.
, 129 A.D.3d 448, 449, 11 N.Y.S.3d 29 ; Kolchins v. Evolution Mkts. Inc. , 128 A.D.3d 47, 61, 8 N.Y.S.3d 1 ), unless "a methodology for determining the material terms can be found within the four corners of the agreement or the agreement refers to an objective extrinsic event, condition, or standard by which the material terms may be determined" ( Carmon v. Soleh Boneh Ltd. , 206 A.D.2d 450, 450, 614 N.Y.S.2d 555 ; see Cobble Hill Nursing Home v. Henry & Warren Corp. , 74 N.Y.2d at 481–483, 548 N.Y.S.2d 920, 548 N.E.2d 203 ).

( Total Telcom Group Corp. v. Kendal on Hudson , 157 A.D.3d 746, 747, 68 N.Y.S.3d 491 [2d Dept. 2018] ; see generally Bana Elec. Corp. v. Bethpage Union Free School Dist. , 76 A.D.3d 987, 988, 907 N.Y.S.2d 693 [2d Dept. 2010], quoting Geothermal Energy Corp. v. Caithness Corp. , 34 A.D.3d 420, 825 N.Y.S.2d 485 [2d Dept. 2006] ["A contract is ambiguous when ‘the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings’ "] ). Here, neither the Court nor the parties can reasonably ascertain how to interpret and apply the third challenged provision. As shown above, it is impossible "to determine what in fact the parties have agreed to" within the four corners of the Agreement form ( Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp. , supra , 78 N.Y.2d at 91, 571 N.Y.S.2d 686, 575 N.E.2d 104 ), nor does the Agreement form itself provide, either internally or by objective extrinsic reference, any "methodology for determining" the many materials terms that are inadequately stated or which are altogether absent from the provision ( Carmon v. Soleh Boneh Ltd. , supra , 206 A.D.2d at 450, 614 N.Y.S.2d 555 ). Accordingly, the third challenged provision of the Agreement form is unenforceable as vague and ambiguous.

Further, the provision is unenforceable as violative of public policy. As noted above, the opening substantive paragraph of the Agreement form required Mrs. Mercado to agree "not to initiate or advance, directly or indirectly, any meritless or frivolous claims of medical malpractice against" Dr. Schwartz. Ample safeguards are provided in New York law and practice to deter the commencement and prosecution of meritless or frivolous claims in general and of medical malpractice claims in particular and to provide a remedy if, despite those safeguards, meritless or frivolous claims are brought (see CPLR §§ 3012-a and 8303-a and 22 NYCRR § 130-1.1 ) Thus, the determination of whether or not a claim is meritless or frivolous is to be made by the court and is a determination that requires written findings (see Glenn v. Annunziata , 53 A.D.3d 565, 566, 861 N.Y.S.2d 769 [2d Dept. 2008] ; Testa ex rel. Testa v. Koerner Ford of Syracuse, Inc. , 261 A.D.2d 866, 868-69, 689 N.Y.S.2d 818 [4th Dept. 1999] ; Watson by Watson v. City of New York , 178 A.D.2d 126, 128, 576 N.Y.S.2d 864 [1st Dept. 1991] ). Further, the court may not render a finding that a case is frivolous and award costs or sanctions against the plaintiff pursuant to 22 NYCRR § 130-1.1 without allowing the plaintiff's lawyers "to present evidence regarding the underlying merits of the case" ( Testa ex rel. Testa v. Koerner Ford of Syracuse, Inc. , supra , 261 A.D.2d at 868, 689 N.Y.S.2d 818 ).

Further, pursuant CPLR § 3012-a, "in any action for medical, dental or podiatric malpractice," the plaintiff's attorney is required:

[to certify that he or she] has reviewed the facts of the case ... consulted with at least one physician ... [and] has concluded ... that there is a reasonable basis for the ... action" (see CPLR 3012—a[a][1] ).

While the statute provides for an attorney's potential inability to comply with paragraph one of subdivision a, the attorney must nevertheless execute a certificate to that effect (see CPLR 3012—a[a][2], [3] ); Santangelo v. Raskin , 137 A.D.2d 74, 78, 528 N.Y.S.2d 90 [2d Dept. 1988] ). As the Appellate Division noted in its decision in Santangelo v. Raskin , the legislative intent that CPLR § 3012-a"effectuates" was "set forth in section one of Chapter 266 of the Laws of 1986, as follows:

"The legislature ... finds that requiring certificates of merit in medical ... malpractice actions ... will improve the quality of medical malpractice adjudications and deter the commencement of frivolous cases."

Id. , 137 A.D.2d at 78, 528 N.Y.S.2d 90. Although the Appellate Division subsequently concluded, in Kolb v. Strogh , 158 A.D.2d 15, 22, 558 N.Y.S.2d 549 [2d Dept. 1990], that its further holding in Santangelo v. Raskin - that a medical malpractice complaint unaccompanied by a certificate of merit could be directly dismissed by the court for violation of CPLR § 3012-a notwithstanding the absence of that sanction in the statute - was effectively overruled by the reasoning of the Court of Appeals in Tewari v. Tsoutsouras , 75 N.Y.2d 1, 7, 550 N.Y.S.2d 572, 549 N.E.2d 1143 [1989] (a complaint cannot be dismissed directly for failure to comply with the notice requirement of CPLR 3406[a] ), the Appellate Division made clear that the courts do indeed have the authority to enforce the requirements of the CPLR § 3012-a, including, ultimately, the power to dismiss the complaint, if warranted:

As the Court of Appeals explained in that case:

we conclude that the Legislature has not authorized the imposition of the sanction of dismissal for noncompliance with the statutory notice requirement of CPLR 3406(a). This conclusion does not flow, as the dissent suggests, from simply a "strict" construction of CPLR 3406 (dissenting opn., at 15, at 579 of 550 N.Y.S.2d, at 1150 of 549 N.E.2d) Rather, the plain language of CPLR 3406 and the rules promulgated thereunder do not provide any authority for the imposition of the sanction of dismissal in this case. Nor does the legislative history of the statute suggest that the Legislature intended that dismissal be an authorized sanction for a plaintiff's failure to timely file the notice. In these circumstances, the authority to dismiss cannot be "implied" (see , dissenting opn., at 17 at 580 of 550 N.Y.S.2d, at 1151 of 549 N.E.2d) and, consequently, the Appellate Division erred in dismissing plaintiff's complaint.

Tewari v. Tsoutsouras
, 75 N.Y.2d 1, 11, 550 N.Y.S.2d 572, 549 N.E.2d 1143 [1989].) The Court stressed that it was not, however, leaving defendants without remedy for plaintiffs' violations of the requirements of CPLR 3406[b] :
our decision today does not leave defendants without a remedy for delays in litigation caused by such noncompliance with CPLR 3406(a). When a notice is not timely filed, a defendant truly seeking expeditious resolution of the underlying malpractice claim may move, even by order to show cause, to compel the filing of the notice. Once a defendant has obtained an order directing that the notice be filed, a plaintiff's disregard of such order may be deemed willful and construed as a deliberate effort to frustrate the calendar control rules promulgated under CPLR 3406(b). In that case, dismissal as authorized by that subdivision would be warranted. Disregard of a court order directing the filing of the notice and its attendant authorizations (see, CPLR 3406[a] ) may also be construed as a failure to comply with a court order directing discovery for which dismissal is an authorized sanction (CPLR 3126 ; see, Zletz v. Wetanson , 67 N.Y.2d 711, 713, 499 N.Y.S.2d 933, 490 N.E.2d 852 [dismissal of complaint is within trial court's discretion where party deliberately disregarded court order to answer interrogatories]; Reynolds Sec. v. Underwriters Bank & Trust Co., 44 N.Y.2d 568, 406 N.Y.S.2d 743, 378 N.E.2d 106 [willful failure to comply with court orders directing discovery warranted striking answer and entry of default judgment] ). Of course, plaintiffs who have delayed the litigation but nevertheless file the notice in response to such a court order or after having been granted an extension may be punished by the imposition of monetary sanctions such as costs and attorney's fees (22 NYCRR 202.56 [a][3] ). Alternatively, a defendant who does not seek to compel the filing of the notice may ultimately seek dismissal of the action pursuant to CPLR 3216 for plaintiff's failure to prosecute.

(id. , 75 N.Y.2d at 10-11, 550 N.Y.S.2d 572, 549 N.E.2d 1143 ).

While the Legislature failed to confer on the judiciary any power to enforce CPLR 3012—a directly, this provision may be enforced indirectly. As the Court of Appeals noted in Tewari , the court may, upon a defendant's motion, order the plaintiff to comply with the statute in question: this much, at least, can be done pursuant to existing provisions contained in the CPLR (see , Tewari v. Tsoutsouras , 75 N.Y.2d 1, 10—11, 550 N.Y.S.2d 572, 549 N.E.2d 1143, supra ). If dilatory plaintiff is so neglectful as to disobey such an order, then sanctions, including the sanction of dismissal, may be imposed ( CPLR 3126 ; Tewari v. Tsoutsouras, supra , at 11, 550 N.Y.S.2d 572, 550 N.Y.S.2d 572, 549 N.E.2d 1143 ; see also , Zletz v. Wetanson , 67 N.Y.2d 711, 713, 499 N.Y.S.2d 933, 490 N.E.2d 852 ; Reynolds Securities v. Underwriters Bank & Trust Co. , 44 N.Y.2d 568, 406 N.Y.S.2d 743, 378 N.E.2d 106 ).

In Tewari v. Tsoutsouras , supra , 75 N.Y.2d 1, 550 N.Y.S.2d 572, 549 N.E.2d 1143 [1989], the Court of Appeals suggested that the trial court could order compliance with CPLR 3406(a) pursuant to the provisions of CPLR 3126, and that any violation of such an order directing compliance with CPLR 3406(a) could thereafter be regarded as a violation of an order respecting discovery (CPLR 3126 ). The same can be said of an order directing compliance with CPLR 3012—a (see Steinberg v. Brookdale Hosp. , 134 Misc.2d 268, 271, 510 N.Y.S.2d 797 [Sup. Ct. Kings County 1986] ).

Kolb v. Strogh , 158 A.D.2d 15, 22, 558 N.Y.S.2d 549 [2d Dept. 1990].

As noted above, CPLR § 3012-a was enacted as part of Chapter 266 of the Laws of 1986, specifically to "improve the quality of medical malpractice adjudications and deter the commencement of frivolous cases" (L.1986, c.266 § 1). Chapter 266 of the Laws of 1986, the "Medical Malpractice Reform Act of 1986" (the "1986 Act"), along with Chapter 294 of the Laws of 1985, the 1985 "Medical Malpractice Reform Act" (the "1985 Act") have been described as together constituting " "a comprehensive package of amendments to medical malpractice legislation" ( White v. New York City Health & Hosps. Corp. , 88 CIV. 7536 (LBS), 1990 WL 33747, at *10 [S.D.N.Y. Mar. 19, 1990] ), effecting changes not only to the CPLR, but to Public Health Law, the Education Law, the Insurance Law and the Judiciary Law. As the Court of Appeals has written with respect to the 1985 Act, these changes were:

part of a comprehensive plan intended "to ensure the continued availability and affordability of quality health services" in this State by lowering malpractice insurance premiums and thereby lowering health care costs (L.1985, ch. 294, § 1). More specifically, the Medical Malpractice Reform Act was intended to reduce the cost of malpractice insurance premiums while assuring adequate and fair

compensation to injured persons, to expedite the resolution of malpractice claims and thereby reduce the cost of malpractice litigation, and to reduce incidents of medical malpractice (L.1985, ch. 294, Mem. of State Executive Dept., 1985 McKinney's Session Laws of NY, at 3022—3027). To expedite malpractice litigation, the Legislature provided for expanded discovery as to expert witnesses ( CPLR 3101[d][1] ), the assessment of costs and attorneys' fees against

a party or attorney advancing frivolous claims ( CPLR 8303—a ), and a mandatory precalendar conference, presided over by the Judge who would later try the case, in which the parties would explore settlement possibilities, simplify and limit issues and establish expedited discovery and trial schedules ( CPLR 3406[b] ) ... triggered by the plaintiff's filing of a "notice of dental, medical or podiatric malpractice action" pursuant to CPLR 3406(a) (see, Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 3406 [1989 Supp.Pamph.], at 79—80).

( Tewari v. Tsoutsouras , supra , 75 N.Y.2d at 6-7, 550 N.Y.S.2d 572, 549 N.E.2d 1143 [1989] ; see also 11 NYCRR § 70.5(a)(1), quoting L. 1985, ch. 294, § 1). Similarly, the 1986 Act was intended to respond to the Legislature's finding that, among other things:

... upward pressures on already high malpractice premiums continue to threaten the public health by discouraging physicians and dentists from initiating or continuing their practice in New York and by contributing to the rising cost of health care ...[;] that additional steps must be taken in the public interest to reduce the cost of malpractice insurance ... [and] that physicians responsible for acts of professional misconduct should be subject to effective discipline and that improvements in the disciplinary process will contribute to the protection of the public health and the reduction of the incidence of malpractice.

( White v. New York City Health & Hosps. Corp. , supra , 1990 WL 33747, at *10 [S.D.N.Y. Mar. 19, 1990], quoting L.1986, Ch. 266 § 1).

Plainly, the network of statutory provisions, as amended over the years (see, e.g., L.1988, ch. 184; L. 1987, ch 507; L. 1991, ch. 165), that govern the assertion, prosecution and defense of medical (as well as dental and podiatric) malpractice claims, whether separately considered or viewed as part of a larger "comprehensive plan" ( Tewari v. Tsoutsouras , supra , 75 N.Y.2d at 6, 550 N.Y.S.2d 572, 549 N.E.2d 1143 ), represents a balancing by the Legislature of the public's need for "the continued availability and affordability of quality health services" (L.1985, ch. 294, § 1), "while assuring adequate and fair compensation to injured persons, ... expedit[ing] the resolution of malpractice claims and thereby reduc[ing] the cost of malpractice litigation, and ... reduc[ing] incidents of medical malpractice" (L.1985, ch. 294, Mem. of State Executive Dept., 1985 McKinney's Session Laws of NY, at 3022—3027). To the extent the third challenged provision of the Agreement form is intended to override or, if enforced, would have the effect of disrupting that balance by replacing the mechanisms the Legislature has enacted, in particular, to regulate the assertion and litigation of medical malpractice claims and to deter, identify and sanction the interposition of meritless or frivolous medical malpractice claims and defenses , by substituting different - and potentially biased - mechanisms that afford neither the procedural safeguards nor the substantive standards that the Legislature intended to govern medical malpractice claims, the provision necessarily violates public policy and is unenforceable (see gen erally Ash v. New York Univ. Dental Ctr. , supra , 164 A.D.2d at 369, 564 N.Y.S.2d 308 ; Ciofalo v. Vic Tanney Gyms, Inc. , supra , 10 N.Y.2d at 297, 220 N.Y.S.2d 962, 177 N.E.2d 925 ; DeVito v. New York Univ. Coll. of Dentistry , supra , 145 Misc.2d at 148, 544 N.Y.S.2d 109. See also New York Tel. Co. v. Pub. Serv. Com'n of State of N.Y. , supra , 72 N.Y.2d at 427, 534 N.Y.S.2d 136, 530 N.E.2d 843 ; Creel v. Crown Publishers, Inc. , supra , 115 A.D.2d at 415, 496 N.Y.S.2d 219 ; Application of Town of Waterford , supra , 4 A.D.2d at 419, 164 N.Y.S.2d 914 ; Wilson v. Bd. of Ed., Union Free School Dist. No. 23, Town of Oyster Bay, Nassau County , supra , 39 A.D.2d at 966, 333 N.Y.S.2d 868 ).

Plaintiffs further contend that the third challenged provision is violative of public policy because it "seeks to resuscitate" the so-called "medical malpractice panels" of Judiciary Law § 148-a, a provision that was repealed in 1991. See L.1991, ch. 165 § 47. In view of its holding, the court finds it unnecessary to address that contention.

See also fn. 8, supra .

The Court has considered the parties' remaining contentions and has concluded that they are without merit or need not be addressed in view of the court's determinations. Accordingly, the plaintiffs' motion for an order declaring the Agreement as to Resolution of Concerns void and unenforceable is granted, and the cross-motion of Dr. Schwartz and Island is denied.

The Agreement form contains no severability provision or any other indication that the parties intended separate performance of portions of the form in the event material provisions of the form were found to be unenforceable. Indeed, given the inevitable linkage of the Agreement form's requirement that Mrs. Mercado not "initiate or advance, directly or indirectly, any meritless or frivolous claims of medical malpractice against" Dr. Schwartz both with the third challenged provision's purported requirement that "a conclusion by a specialty society" be "treated as supporting or refuting evidence of a frivolous or meritless claim" and with the penultimate provision of the form, purporting to allow "specific performance and/or injunctive relief in the event of a breach," the infirmities that render the third challenged provision unenforceable necessarily render these other provisions unenforceable for the same reasons. See, e.g. , First Sav. & Loan Ass'n of Jersey City, N. J. v. Am. Home Assur. Co. , 29 N.Y.2d 297, 300, 327 N.Y.S.2d 609, 277 N.E.2d 638 [1971] ; Barden & Robeson Corp. v. Timmerman , 116 A.D.2d 814, 815-16, 497 N.Y.S.2d 196 [3d Dept. 1986]quoting Christian v. Christian , 42 N.Y.2d 63, 73, 396 N.Y.S.2d 817, 365 N.E.2d 849 [1977] (" ‘Whether a contract is entire or severable generally is a question of intention, to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time they contracted’ ").
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The foregoing constitutes the Decision and Order of the court.