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By Dan Schulte, J.D.
MDA Legal Counsel
From the April 2009 issue of the Journal

Question: I have been approached by a company selling a “program” that is advertised to protect me against malpractice claims. One of the items included in the program is some type of release, waiver or other contract that I would have patients sign where they agree never to sue me for malpractice in consideration of my agreement to provide dental treatment. Why has no one thought of this before? 

Answer: Ideas that sound too good to be true usually are. What you describe is a good example. 

Patient waiver of malpractice liability was addressed by the Michigan Court of Appeals in a 1994 case (Cudnick vs. William Beaumont Hospital). The patient in that case signed a agreement prior to receiving treatment containing the following language: “I hereby release the physicians and staff of the Department of Radiation Oncology and William Beaumont Hospital from all suits, claims, liability, or demands of every kind and character which I or my heirs, executors, administrator’s [sic] or assigns hereafter can, shall, or may have arising out of my participation in the radiation therapy treatment regimen.”

The patient then received radiation therapy at Beaumont Hospital. He later sought treatment for back pain, and a post-radiation ulcer burn was discovered in the area where he received radiation therapy. A short time later the patient died. The patient’s estate sued the hospital, alleging that Beaumont negligently provided the radiation therapy and that this negligence contributed to the patient’s death. The circuit court dismissed the case, ruling that the agreement signed by the patient prior to receiving the radiation therapy precluded the patient’s estate from pursuing this malpractice case.

Michigan’s Court of Appeals reversed the circuit court. In doing so, it looked to other jurisdictions that have considered whether a patient’s waiver future malpractice claims is enforceable. Courts in the majority of other jurisdictions have held such waiver agreements invalid and unenforceable when:

  • the subject of the agreement is a business of a type generally thought suitable for public regulation;
  • the party seeking the waiver is engaged in performing a service of great importance to the public that is often a matter of practical necessity for some members of the public;
  • the party seeking the waiver holds himself/herself out as willingly to perform the service for any member of the public who seeks it; and
  • the party seeking the waiver has superior bargaining power. 

The Michigan Court of Appeals found that all of these factors was present. Clearly, hospitals and medical and dental professionals are subject to extensive public regulation. The provision of dental and medical services is of great importance to the public and a matter of practical necessity for patients. Dentists and other medical professionals hold themselves out to the public as willing to provide their services to the public at large. Patients in need of medical or dental care were seen as having less bargaining power than the medical and dental professionals from whom they are seeking care.

The Cudnick case stands as binding precedent that, if challenged in court, would make invalid and unenforceable all similar agreements seeking a waiver of suits, claims, liability, demands, etc arising from dental services.

The Court of Appeals was careful in its opinion to state that its ruling should not be construed as rendering invalid and unenforceable all releases of malpractice liability. Importantly, releases executed after the initiation of a malpractice lawsuit pursuant to a settlement for due consideration will be valid and enforceable (and routinely are).

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