Florida Appellate Court Finds Patient’s Pre-Surgery Release Of Neurosurgeon Was Ambiguous

162017_132140396847214_292624_nPrior to undergoing spinal fusion surgery, a patient was asked to sign a release provided by the neurosurgeon and his medical practice that stated: “As of January 1, 2003, Dr. Michael D. Paul, and the professional corporation of MacMillan, Paul and Burkarth, P.A., also known as Treasure Coast Neurosurgery, will not carry any medical malpractice insurance. Being of sound mind and sound body, I hereby acknowledge this fact and agree not to sue Dr. Michael D. Paul, or the professional corporation of MacMillan Paul and Burkarth, P.A. for any reason. My reason for doing this is that I realize that Dr. Michael D. Paul and his staff will do the very best to take care of me according to community medical standards.”

During the spinal fusion surgery, the woman’s ureter was cut and she suffered harm as a result. The woman and her husband filed their Florida medical malpractice lawsuit against the defendant neurosurgeon and his medical practice. The defendants moved for summary judgment based on the purported exculpatory release executed by the wife before the surgery. The trial court entered summary judgment in favor of the defendants, finding the release to be “completely unambiguous” in releasing claims of negligence. The plaintiffs appealed.

The District Court of Appeal of the State of Florida Fourth District (“Florida Appellate Court”) held in its opinion filed on June 7, 2017: “Here, the purported release is rife with ambiguity and uncertainty. The exculpatory provision appears in smaller font below a statutory notice regarding the doctor’s decision not to carry malpractice insurance. The provision is not thorough or detailed. It does not expressly release any particular type of claims and it comprises three sentences which, read together, are contradictory. The first sentence reiterates the fact that the doctor and his practice do not carry malpractice insurance. The second sentence acknowledges that Myra understands this and agrees not to sue for “any reason.” The third sentence provides Myra’s reason for agreeing not to sue—because she believes the doctor and his staff will do their “very best to take care of me according to community medical standards.” The first two sentences, read in isolation, are broad and arguably encompass a negligence claim. However, … there is additional language in the release that creates ambiguity about exactly what type of claims are being released. The third sentence, which qualifies the first two sentences, creates an ambiguity. Indeed, if the defendants intended to be released from their own negligence, it begs the question as to why the third sentence is included in the release …  the language in the release here could lead “a person of ordinary intelligence [to] believe that the release could most reasonably be taken merely as driving home the fact that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant.””

The Florida Appellate Court therefore reversed and remanded for further proceedings.

Source Brooks v. Michael D. Paul, M.D., No. 4D16-2538

If you or a loved one suffered injuries or other harms as a result of surgical malpractice in Florida or in another U.S. state, you should promptly seek the legal advice of a Florida medical malpractice attorney (or a medical malpractice attorney in your state) who may investigate your surgical medical malpractice claim for you and represent you in a surgical malpractice case, if appropriate.

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This entry was posted on Saturday, July 1st, 2017 at 5:22 am. Both comments and pings are currently closed.

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