In Search of an Enforceable Medical Malpractice Exculpatory

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June 2009] MEDICAL MALPRACTICE EXCULPATORY AGREEMENTS 879 malpractice exculpatory agreements. If a court could be convinced that the greater-responsibility justification is driven by the signalingpressure explanation, I argue that a tool that removes the signaling pressure may allow courts to uphold the contracts, and that a confidential medical malpractice exculpatory agreement that is also nonadhesive and clearly worded would likely be enforceable. This Note has focused on signaling effects and confidential contracting in the context of medical malpractice exculpatory agreements, but these ideas might be generalized to other situations, especially where a “special relationship” between the two parties poses problems for the enforceability of nonadhesive, clearly worded contracts. For example, contracts in the workplace have been invalidated under the special-relationship prong of the void-for-public-policy rationale. 114 Further research might usefully explore whether confidential contracts may be used in this way or, indeed, to cure any contract rendered problematic by signaling pressures. 114 White v. Village of Homewood, 628 N.E.2d 616, 619–20 (Ill. App. Ct. 1993).
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In Search of an Enforceable Medical Malpractice Exculpatory

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