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Florida Fourth DCA reverses trial court's summary judgment for medical negligence defendant, finds that liability release executed by patient was unclear and ambiguous

On June 7, 2017, in Brooks v. Paul, No. 4D16-2538, the Florida Fourth DCA reversed a trial court’s summary judgment in favor of a medical negligence defendant. The defendant, a neurosurgeon, had stopped carrying medical malpractice insurance and instead required patients to execute a release acknowledging that they were aware of this fact and that they agreed not to sue the doctor or his practice “for any reason.” After executing the form, the plaintiff was injured during surgery and sued the defendant for medical negligence. The trial court found the release “completely unambiguous” and entered summary judgment in favor of the defendants.

The Fourth DCA observed that exculpatory clauses are disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. See Loewe v. Seagate Homes, Inc., 987 So. 2d 758, 760 (Fla. 5th DCA 2008). Quoting Murphy v. Young Men’s Christian Ass’n of Lake Wales, Inc., 974 So. 2d 565, 567-68 (Fla. 2d DCA 2008), the Court noted that such clauses “will be strictly construed against the party claiming to be relieved of liability, and “are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he is contracting away.”

While the Fourth DCA acknowledged that that a negligence claim may be barred by a release even if the release does not explicitly reference negligence actions, see Sanislo v. Give Kids the World, Inc., 157 So. 3d 256 (Fla. 2015), the Court found the case more akin to the exculpatory provisions that were found ambiguous in Goyings v. Jack and Ruth Eckerd Foundation, 403 So. 2d 1144 (Fla. 2d DCA 1981); Murphy, 974 So. 2d 565; and UCF Athletics Ass’n v. Plancher, 121 So. 3d 1097 (Fla. 5th DCA 2013). The Court was particularly concerned about the inclusion in the release of a final sentence indicating that the physician and his staff “will do the very best to take care of me according to community medical standards.” Based on this language, the Court concluded that the release reasonably could 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.