## Facts

- New York University College of Dentistry operated a teaching clinic offering reduced-fee dental services performed by student dentists under faculty supervision.
- Carmen DeVito became a clinic patient and, before treatment, signed a preprinted NYU “release” purporting to hold NYU, its doctors, and students harmless from “any and all liability” for injuries on the premises or “as a result of any treatment.”
- DeVito received dental treatment at the clinic for about one year beginning in December 1982, including treatment by the named student defendants.
- DeVito later sued NYU and individual student dentists for dental malpractice, alleging negligent treatment and injury.
- Defendants asserted the signed release barred the malpractice action.

## Issues

1. Whether a broadly worded, pre-treatment release signed in exchange for reduced-fee treatment at a teaching dental clinic bars a later malpractice action for negligent dental treatment.
2. Whether the release language was sufficiently clear and explicit to waive negligence or malpractice claims.
3. Whether public policy permits dental care providers to contractually exculpate themselves from liability for professional negligence in these circumstances.

## Decision

- The court denied defendants’ motion for summary judgment.
- The court held the release did not bar DeVito’s malpractice claims as a matter of law.
- The court found the release language insufficiently clear to waive liability for negligence or malpractice.
- The court further held that, given the essential nature of medical/dental services and the bargaining inequality created by form releases, public policy weighed against enforcing the release to immunize providers from professional negligence.

## Legal Principles

- An exculpatory clause purporting to release a party from liability for its own negligence must be clear, explicit, and unambiguous, and must be understandable to the person signing it.
- General “any and all liability” language, without an express and comprehensible waiver of negligence or malpractice, may be legally insufficient to bar professional negligence claims.
- Public policy may limit or invalidate contractual attempts by providers of essential professional services, including dental care, to disclaim liability for negligent treatment, particularly when the waiver is presented as a take-it-or-leave-it condition of receiving care.
- Summary judgment is improper where the asserted release is legally insufficient or unenforceable on public policy grounds as applied to alleged professional malpractice.

## Conclusion

The court allowed the dental malpractice action to proceed, ruling that the clinic’s pre-treatment release did not clearly waive negligence claims and, in any event, could not be enforced to eliminate liability for negligent dental care under the circumstances presented.


DeVito v. N.Y.U. Coll. of Dentistry, 544 N.Y.S.2d 109 (Sup. Ct. N.Y. Cnty. 1989)