CAM Cases

Below are some of the key judicial decisions in New York covering malpractice claims and/or disciplinary investigations against physicians using CAM.

Note particularly the language (which we lawyers call "dicta," i.e., non-binding but still thorny) expressing the view that there is only one standard of care whether one is using conventional medicine or complementary medicine. This can set up a kind of malpractice or discipline per se, a point I covered in Beyond Complementary Medicine.

In the Matter of WARREN F. METZLER, Petitioner, v. NEW YORK STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT et al., Respondents.

67494

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

203 A.D.2d 617; 610 N.Y.S.2d 334; 1994 N.Y. App. Div. LEXIS 3600


April 7, 1994, Decided
April 7, 1994, Entered

COUNSEL: [***1]

Warren F. Metzler, Hackensack, New Jersey, petitioner in person.

G. Oliver Koppell, Attorney-General (Barbara K. Hathaway of counsel), New York City, for respondents.

JUDGES: Before: Cardona, P.J., Mikoll, Weiss and Peters, JJ.

OPINIONBY: PETERS

OPINION: [*617] [**335] MEMORANDUM AND JUDGMENT

Peters, J.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Public Health Law § 230-c [5]) to review a determination of respondent Administrative Review Board for Professional Medical Conduct which revoked petitioner's license to practice medicine in New York.

Petitioner is a physician practicing in New York County. In March 1992, a Hearing Committee on Professional Conduct of the State Board for Professional Medical Conduct (hereinafter the Committee) was convened to hear charges against petitioner alleging that he (1) practiced with gross negligence, (2) practiced with negligence on more than one occasion, and (3) failed to maintain records. The charges involved petitioner's treatment of four patients.

After the hearing, the Committee issued [***2] a determination. Among the general findings it was determined that petitioner does not practice orthodox or allopathic medicine but practices homeopathy, which petitioner described as "treating the restrictions the person has in mastering life". Petitioner testified that each case is studied to determine the patient's primary pattern of limitation. The limitation pattern of the patient is then matched up to the homeopathic remedy meant to ameliorate that pattern.

Literature provided by petitioner to his patients prior to treatment highlights the homeopathic belief that an illness is [*618] never incurable and that therefore homeopathy can help people recover from their illness. Petitioner's literature further represents that he approaches "health care as a primary care practitioner who can treat all your ailments. If additional care is needed, such as surgery, then I desire to be contacted first so I can coordinate the additional care" (Warren F. Metzler, Homeopathy: Is it the Answer to my Health Care Needs?). This literature, composed in a question/answer format, also queries, "What if I have to go to the Hospital?" The response provided therein details that "no one that [***3] called me when they felt ill and came in for a visit needed to be hospitalized. There may be a rare situation where my patients end up in the hospital. If they do, treatment can continue once discharge occurs, without any hindrance of progress" (id.).

After a review of all testimony, the Committee noted that "homeopathy is not recognized in New York State as a separate branch of medicine nor is [petitioner] separately licensed as a homeopathic physician". The Committee unanimously concluded that petitioner's treatment of one of his patients, who died from pneumocystic pneumonia and was suffering from AIDS, did not meet the minimum standards of acceptable medical practice and was so egregious as to constitute gross negligence. In its determination, the Committee further noted that petitioner "does not recognize the existence of disease [**336] and does not consider any disease to be incurable. He also does not recognize the necessity for laboratory tests or diagnostic studies or the need for repeated physical examinations." Accordingly, the Committee unanimously determined that petitioner's license to practice medicine should be revoked.

Such determination of the Committee [***4] was subsequently sustained by respondent Administrative Review Board for Professional Medical Conduct (hereinafter the Review Board). Petitioner then brought the instant CPLR article 78 proceeding to challenge the Review Board's determination.

Petitioner contends that the determination which resulted in the revocation of his license must be annulled on the ground that the assessment of his professional conduct relied upon standards which are applicable only to orthodox or allopathic medicine rather than to the homeopathic medicine which petitioner was practicing. Like the Committee, the Review Board held petitioner to the same standard of care to which all physicians in New York are held. In doing so, it [*619] noted that there are no different standards for licensed physicians based on their philosophy, religion or personal approach to their calling.

While petitioner contends that the charges found by the Committee and the Review Board are the result of a bias against homeopathy, we find that petitioner has wholly failed to present any persuasive evidence to support this assertion (see, Matter of Warder v Board of Regents of Univ. of State of N.Y., 53 NY2d 186, 197, [***5] 440 N.Y.S.2d 875, 423 N.E.2d 352, cert denied 454 U.S. 1125, 71 L. Ed. 2d 112, 102 S. Ct. 974). Further, we find that there is no requirement that members of the Committee or the Review Board be practitioners of the same specialty as the physician under review, much less that they be adherents to the same philosophy of medicine (see, Matter of Amarnick v Sobol, 173 AD2d 914, 916, 569 N.Y.S.2d 780; Matter of Rosenberg v Board of Regents of Univ. of State of N.Y., 96 AD2d 651, 466 N.Y.S.2d 743, lv denied 61 NY2d 607).

Petitioner further contends that it was error to find him guilty of misconduct in regard to the four patients whose care was at issue because either the patient or the patient's parents (in the case of the minor child treated by petitioner) were made aware that petitioner's practice was limited to homeopathy due to the literature he distributed to them. We find such contention to be wholly without merit because it is well settled that a patient's consent to or even insistence upon a certain treatment does not relieve a physician from the obligation of treating the patient with the usual standard of care (see, Matter of Van Gaasbeek v Chassin [***6] , AD2d [Nov. 4, 1993], lv denied NY2d [Jan. 18, 1994]).

Applying the standard of review to be invoked in cases such as this - whether the Review Board's determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious or was an abuse of discretion ( CPLR 7803 [3]; see, Matter of Bogdan v New York State Bd. for Professional Med. Conduct, 195 AD2d 86, 606 N.Y.S.2d 381; Matter of Rudell v Commissioner of Health of State of N.Y., 194 AD2d 48, 50, 604 N.Y.S.2d 646) - we conclude that the determination of the Review Board must be confirmed. The other issues raised by petitioner do not merit comment.

Cardona, P.J., Mikoll and Weiss, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

........

In the Matter of Nicholas Gonzalez, Petitioner, v. New York State Department of Health et al., Respondents.

73088

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

232 A.D.2d 886; 648 N.Y.S.2d 827; 1996 N.Y. App. Div. LEXIS 11260


October 30, 1996, Decided
October 31, 1996, Entered

PRIOR HISTORY: [***1]

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230-c [5]) to review a determination of respondent Administrative Review Board for Professional Medical Conduct which, inter alia, placed petitioner on probation and ordered him to participate in the State-sponsored Physician Prescribed Education Program.

DISPOSITION: The determination is confirmed, without costs, and petition dismissed.

COUNSEL: McNamee, Lochner, Titus & Williams P.C. (William R. Bishin, Seattle, Washington of counsel), Albany, for petitioner.

Dennis C. Vacco, Attorney-General (Raymond J. Foley of counsel), New York City, for respondents.

JUDGES: Mikoll, J. P., Mercure, Peters and Carpinello, JJ., concur.

OPINIONBY: Spain

OPINION: [*886] [**829]

Spain, J.

In August 1993, petitioner, a physician who specializes in the area of nutritional therapy and who typically treats patients with advanced and incurable cancer, was charged by the Office of Professional Medical Conduct (hereinafter OPMC) with 15 specifications of misconduct including, inter alia, gross negligence, gross incompetence, negligence on more than one occasion, incompetence on more than one occasion [***2] and failing to maintain adequate records. The charges stemmed from petitioner's treatment of six incurable cancer patients (hereinafter patients A through F) who had either (1) exhausted conventional treatment options, or (2) rejected the only conventional treatment options remaining.

Thereafter, a Hearing Committee consisting of three [*887] members of respondent State Board for Professional Medical Conduct (hereinafter the Board) found that petitioner was negligent and incompetent on more than one occasion by reason of failing to correctly interpret the signs and symptoms of disease progression in all six patients and by reason of his failure to (1) perform appropriate assessments with respect to the different stages of the disease in patients A and B, (2) perform adequate neurological evaluations for patients B and C, (3) perform an adequate physical examination for patient D, (4) obtain adequate laboratory or radiological evaluations for patients B, C, D and F, (5) perform sufficient follow-up monitoring for patient E, and (6) perform sufficiently frequent follow-up evaluations for patient A. Petitioner was also found to have failed to maintain accurate records with regard [***3] to patients A, D and F.

The Hearing Committee ordered the suspension of petitioner's license to practice medicine for three years, but stayed the suspension subject to petitioner's compliance with certain probationary conditions, including (1) supervision by OPMC, (2) completion of a certified retraining program, and (3) completion of 200 hours of community service in a hospice program. In addition, petitioner was ordered to pay a $ 15,000 fine. Both OPMC and petitioner sought review by respondent Administrative Review Board for Professional Medical Conduct (hereinafter the ARB), which sustained the Hearing Committee's findings regarding the charges. The ARB, while rejecting OPMC's request for revocation of petitioner's license as too harsh, sustained the Hearing Committee's order of community service and retraining in oncology, but modified the terms of the retraining requirement such that petitioner was directed to undergo an evaluation and submit to retraining in a Physician Prescribed Education Program; additionally, it overruled the imposition of the $ 15,000 fine. The ARB also denied petitioner's request for a new hearing pursuant to the Alternative Medical Practice Act [***4] (see, L 1994, ch 558). Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, annulment of the ARB's [**830] determination or, in the alternative, remittal for a new hearing.

Initially, we reject petitioner's assertion that the Alternative Medical Practice Act mandates that he is entitled to a new hearing before a Hearing Committee which consists of at least one nonconventional physician. The Alternative Medical Practice Act, which took effect July 26, 1994, amended the Public Health Law and the Education Law and requires that at least two of the physicians on the Board be "physicians who [*888] dedicate a significant portion of their practice to the use of non-conventional medical treatments" (Public Health Law § 230 [1]). Petitioner's hearing concluded in March 1994 and the determination of the Hearing Committee is dated June 8, 1994. In light of the express language in the legislation that it shall take effect immediately (see, L 1994, ch 558, § 5) and in the absence of any indication of legislative intent to provide retroactivity, we conclude that the legislation should only be applied prospectively (see, Matter of Moynihan v [***5] New York State Employees' Retirement Sys., 192 AD2d 913, 914; Matter of Lusardi v Eugene Lusardi, M.D., P. C., 167 AD2d 3, 4; see also, McKinney's Cons Laws of NY, Book 1, Statutes § 52). Moreover, even if a remittal were ordered, the legislation does not guarantee petitioner, as a nonconventional physician, that a nonconventional physician will be on the Hearing Committee which determines his case (see, L 1994, ch 558). Rather, Public Health Law § 230 (1), as amended, simply requires that the Board, consisting of at least 18 physicians and seven lay members (see, Public Health Law § 230 [1]), contain at least two nonconventional physicians among its many members.

Petitioner further asserts that the Board's determination should be annulled because the charges reflect a bias against alternative medicine and because his professional conduct was assessed according to the standards to which conventional practitioners are held, which are inconsistent or irrelevant to his therapy, especially in light of the fact that his patients fully consented to such nonconventional therapy. In our view petitioner's assertions are without merit. Both the Hearing Committee [***6] and the Board recognized that alternative medicine involves a different treatment regime, but held him to the same standard of care to which all physicians in New York are held. Without questioning the merits of petitioner's therapeutic protocol, the Board noted that: "physicians must still possess the same basic scientific knowledge of the nature of disease and the disease process. That knowledge is a standard to which all physicians are held. That standard and other basic standards, in areas such as record keeping and informed patient consent, do not vary based on the treatment regimes. In the treatment of all the patients in this case, [petitioner] demonstrated that he lacked the basic understanding of the disease from which all the patients were suffering." Notably, "it is well settled that a patient's consent to or even insistence upon a certain treatment does not relieve a physician from the obligation of treating the patient with the usual standard of care" ( Matter of Metzler v New York State Bd. for Professional Med. Conduct, 203 AD2d 617, 619, appeal dismissed 83 NY2d 999; [*889] see, Matter of Van Gaasbeek v Chassin, 198 AD2d 572, lv denied 82 [***7] NY2d 665). Furthermore, petitioner has failed to present any persuasive evidence to support his assertion of bias (see, Matter of Warder v Board of Regents, 53 NY2d 186, 197, cert denied 454 US 1125).

Petitioner also contends that the Administrative Officer (hereinafter the AO) erred in his evidentiary rulings by excluding evidence which included petitioner's dissertation regarding the theory and protocol underlying his practice; a paper containing case studies of patients of a Texas dentist, William Kelley, each of whom had undergone the same therapeutic protocol and who had successful results; and articles on the effectiveness of conventional treatments for advanced cancers. Petitioner also argues that the AO improperly refused to allow cross-examination [**831] of OPMC's key medical expert regarding the conduct of the other physicians who treated patients A through F.

Upon review of the record we find petitioner's assertions to be unavailing. In our view, the areas into which counsel sought to cross-examine were irrelevant to the issue at hand; additionally, the two physicians who offered expert testimony on behalf of petitioner, both of whom are highly respected [***8] in their respective fields, testified at great length regarding the same issues which the excluded exhibits allegedly addressed. In any event, viewing the record as a whole, the AO's rulings, even if erroneous, were harmless in that they were not so egregious as to " ' "infect[] the entire proceeding with unfairness" ' " ( Matter of Morrissey v Sobol, 176 AD2d 1147, 1150, lv denied 79 NY2d 754, quoting Matter of Morfesis v Sobol, 172 AD2d 897, lv denied 78 NY2d 856, quoting Matter of Ackerman v Ambach, 142 AD2d 842, 845, affd 73 NY2d 323; see, Matter of Martinez-Urrutia v Szetela, 216 AD2d 700, 701, lv denied 86 NY2d 710).

A physician is guilty of negligence on more than one occasion under Education Law § 6530 (3) when he or she has "failed to exercise the care that a reasonably prudent physician would exercise under the circumstances" ( Matter of Bogdan v New York State Bd. for Professional Med. Conduct, 195 AD2d 86, 88, appeal dismissed, lv denied 83 NY2d 901). A physician may be found guilty of incompetence on more than one occasion under Education Law § 6530 (5) on the same underlying facts regarding his or her conduct ( [***9] see, Matter of Colvin v Chassin, 214 AD2d 854, 856). The standard of review in such cases is stringent (see, Matter of Chua v Chassin, 215 AD2d 953, lv denied 86 NY2d 708; Matter of Nieves v Chassin, 214 AD2d 843, 844, [*890] lv denied 86 NY2d 703; Matter of Moss v Chassin, 209 AD2d 889, 891-892, lv denied 85 NY2d 805, cert denied 516 US 861; Matter of Santasiero v Sobol, 199 AD2d 835, lv denied 83 NY2d 754) and credibility issues regarding expert witness testimony will not be disturbed unless irrational (see, Matter of Minielly v Commissioner of Health of State of N. Y., 222 AD2d 750, 751). A medical record which "fails to convey objectively meaningful medical information concerning the patient treated to other physicians is inadequate" ( Matter of Mucciolo v Fernandez, 195 AD2d 623, 625, lv denied 82 NY2d 661; see, Matter of Revici v Commissioner of Educ. of State of N. Y., 154 AD2d 797, 800). A careful review of the record reveals that there is sufficient testimonial proof and ample objective evidence to provide a rational basis of fact to support the Board's determination that petitioner was guilty [***10] of negligence and incompetence on more than one occasion by failing, inter alia, to correctly interpret the signs and symptoms of the progression of the cancer with respect to patients A through F and that he was guilty of failing to maintain accurate medical records with respect to patients A, D and F.

Finally, we reject petitioner's assertion that the ARB's direction that he perform 200 hours of service in a hospice program and that he undergo educational training courses in the field of oncology is a "harassing and wasteful interference with his practice". In reviewing the propriety of physician discipline, this Court is limited to assessing whether the penalty imposed "is so incommensurate with the offense as to shock one's sense of fairness" ( Matter of Chua v Chassin, supra, at 956; see, Matter of Colvin v Chassin, supra, at 855; Matter of Adler v Bureau of Professional Med. Conduct, 211 AD2d 990, 993; Matter of Jean-Baptiste v Sobol, 209 AD2d 823, 825) [**832] and each case is to be judged according to its own facts and circumstances (see, Matter of Binenfeld v New York State Dept. of Health, 226 AD2d 935, 937; Matter of Abdelmessih [***11] v Board of Regents, 205 AD2d 983, 986; Matter of Edelman v Sobol, 174 AD2d 896, 897-898, appeal dismissed 78 NY2d 1006).

Here, the ARB's determination ordering petitioner to undergo an evaluation and retraining in oncology was based on its conclusion that, while "the vast majority of [petitioner's] patients suffer from cancer[,] [petitioner] ... lacks the basic understanding of the nature of that disease". Its determination that petitioner perform 200 hours of hospice service was based on its finding that "such service will acquaint [petitioner] with broader aspects of practice, including the treatment of the terminally ill and cycle of death, and will supplement the [*891] formal ... [r]etraining". Although Education Law § 6527 (4) (e) provides, in relevant part, that article 131 "shall not be construed to affect or prevent ... [t]he physician's use of whatever medical care, conventional or non-conventional, which effectively treats human disease, pain, injury, deformity or physical condition", the penalty imposed on petitioner does not contradict such provision--which was also made effective July 26, 1994 (see, L 1994, ch 558, § 1).

In our [***12] view, the penalty imposed will only serve to improve petitioner's capability to better diagnose and perhaps distinguish between true metastasis of cancer in his patients and the disguised side effects of his nonconventional therapy. Therefore, contrary to petitioner's argument, the penalties imposed on him were not so harsh as to rise to the level of being shockingly disproportionate (see, Matter of Mansur v State of N. Y. Dept. of Health Bd. for Professional Med. Conduct, 223 AD2d 774, 776; Matter of Park v New York State Dept. of Health, 222 AD2d 959, 961; Matter of Park v Board of Regents, 222 AD2d 946, 948).

Mikoll, J. P., Mercure, Peters and Carpinello, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.

......

Julianne Charell, Plaintiff, v. Nicholas J. Gonzalez, Defendant.

INDEX NO. 133170/93

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

173 Misc. 2d 227; 660 N.Y.S.2d 665; 1997 N.Y. Misc. LEXIS 265


June 10, 1997, Decided

NOTICE: [***1]

EDITED FOR PUBLICATION

DISPOSITION: Both motions to set aside the verdict are denied.

HEADNOTES: Physicians and Surgeons - Malpractice - Alternative Medicine Practitioners In a medical malpractice action against defendant, a practitioner of alternative or nonconventional medicine who treated plaintiff in connection with her uterine cancer by prescribing a special diet protocol, the jury's findings in plaintiff's favor on the questions of negligence and proximate cause cannot be said to be against the weight of the evidence or lacking a rational basis. The standard for proving negligence in a malpractice case is whether the treatment deviates from accepted medical standards. There was no testimony on behalf of defendant on this issue. Moreover, it would seem that no practitioner of alternative medicine could prevail on such a question as the reference to the term "non-conventional" may well necessitate a finding that the doctor who practices such medicine deviates from "accepted" medical standards. On the issue of proximate cause, while there was conflicting evidence, the jury was entitled to find, in accordance with the testimony of plaintiff's expert, that if plaintiff were not improperly dissuaded from undertaking conventional treatment the cancer probably would not have metastasized and she would not have had the recurrence and the resulting blindness and back problems. Plaintiff's experts also testified that the hair test employed by defendant to ascertain the presence of cancer was completely bogus, the treatment provided by him was of no value and, in addition to being damaging in the sense that plaintiff was persuaded not to undergo conventional treatment, was harmful in that the nutrition provided aided the growth of the cancer cells.

Physicians and Surgeons - Malpractice - Lack of Informed Consent - Alternative Medicine Practitioners In a medical malpractice action against defendant, a practitioner of alternative or nonconventional medicine who treated plaintiff in connection with her uterine cancer by prescribing a special diet protocol, the jury's findings in plaintiff's favor on plaintiff's cause of action for lack of informed consent cannot be said to be against the weight of the evidence or lacking a rational basis. There clearly was evidence to support the conclusion that defendant did not provide "appropriate information" with respect to the risks of, and the alternatives to, employing his protocol alone and not combining it with conventional treatment.

Physicians and Surgeons - Malpractice - Assumption of Risk - Alternative Medicine Practitioners In a medical malpractice action against defendant, a practitioner of alternative or nonconventional medicine who treated plaintiff in connection with her uterine cancer by prescribing a special diet protocol, a cross motion by plaintiff to vacate the jury finding that she impliedly assumed a risk of injury to herself when she agreed to undergo treatment by defendant is denied. The evidence showed that plaintiff was a well-educated person who, together with her husband and daughter, did a significant amount of investigation regarding the treatment being offered by defendant and hence became quite knowledgeable on the subject, and that she sought to avoid the suffering that accompanied the chemotherapy/radiation regimen that she had witnessed when a relative had undertaken that treatment. Thus, even though the jury found that defendant had not given appropriate information regarding the risks of his procedure and the available alternatives, it was within the province of the jury, based on the evidence, for it to also find that plaintiff independently obtained sufficient information about the treatment so as to conclude that there was an implied assumption of risk when she agreed to follow defendant's protocol.

Damages - Punitive Damages - Medical Malpractice Action In a medical malpractice action against defendant, a practitioner of alternative or nonconventional medicine who treated plaintiff in connection with her uterine cancer by prescribing a special diet protocol, a motion by defendant to set aside an award of punitive damages is denied. Punitive damages have been allowed in cases where the wrong complained of is morally culpable, or is activated by evil and reprehensible motives, not only to punish the defendant but to deter him, as well as others who might otherwise be so prompted, from indulging in similar conduct in the future. Here, plaintiff offered evidence to show that defendant's practice of prescribing nutrition as a cure was designed to enable companies in which he had a financial interest to sell product. While there was evidence offered by the defendant to the contrary, the jury was entitled to find that defendant's intent in dealing with plaintiff was motivated by greed and that he was reckless in his care of her. It should be noted that although there is pending controversy between the medical establishment and nonconventional practitioners, defendant failed to produce a single witness at trial who defended his treatment of plaintiff as medically sound, whereas plaintiff's experts clearly painted him as a charlatan. With only such evidence before the jury, it cannot be said that the jury award on punitive damages was unsupported by the weight of the evidence. That the jury found that plaintiff had knowledge of the risks involved and thus impliedly assumed a risk of injury should not bar the jury from also awarding punitive damages based on conduct by a physician which it deemed reckless and improperly motivated.

COUNSEL:

Ellenberg & Hutson, New York City, for defendants. Gair, Gair, Conason, Steigman & Mackauf, New York City, for plaintiff.

JUDGES: Edward H. Lehner, J.S.C.

OPINIONBY: Edward H. Lehner

OPINION: [*229]

[**666] Edward H. Lehner, J.

Before me is a motion by defendant to set aside the jury verdict against him and a cross motion by plaintiff to vacate the jury finding that she impliedly assumed a risk of injury to herself when she agreed to undergo treatment by defendant.

In 1991, after being diagnosed with uterine cancer, plaintiff underwent a hysterectomy at Mt. Sinai Hospital, subsequent to which the physicians at that hospital recommended a course of radiation and chemotherapy. That protocol, considering plaintiff's condition, was variously described as "investigative" or "experimental", and was apparently recommended due to the fact that plaintiff had a high chance of recurrence because her cancer cells were found to be poorly differentiated.

Plaintiff then, in seeking a "second opinion", arranged an appointment with defendant in October 1991. She testified [***2] that he dissuaded her from having chemotherapy or radiation, and recommended treatment through his protocol of a special diet, including six coffee enemas a day. A tape of the conversation between the parties shows that he advised her not to "mess" with chemotherapy and stated that he had experienced a 75% success rate with persons in her condition. He also informed her that, through a hair test he had devised, he had determined that cancer cells remained in her body, which condition was undetected by the Mt. Sinai physicians. Plaintiff, who knew of defendant through attendance at one of his lectures and listening to his tapes, and who had witnessed the severe discomfort experienced by a relative who had undertaken chemotherapy and radiation, agreed to be treated by defendant and until June 1992 religiously followed his protocol. Plaintiff was encouraged to continue the treatment when defendant advised her that subsequent hair tests showed a reduction in the number of cancer cells in her body. She testified that she was never told by defendant that he was not an oncologist, nor that his protocol was experimental and not generally accepted in the medical community.

In June 1992, [***3] after experiencing back discomfort and failing vision, she discontinued treatment with defendant and returned to Mt. Sinai Hospital where it was determined that cancer cells had metastasized in her spine, which condition eventually caused her blindness and severe back problems.

In this action plaintiff asserted damage claims against defendant (i) in negligence for persuading her to forego traditional [*230] treatment and undertaking a nutritional protocol [**667] which she contends, by itself, was of no therapeutic value, and (ii) for lack of obtaining an informed consent to the treatment. In addition, she sought punitive damages.

At trial the jury unanimously determined: that the treatment provided by defendant was a departure from good and accepted medical practice, which departure was a proximate cause of injuries to plaintiff; that defendant did not provide plaintiff with appropriate information with respect to the risks of his treatment and the alternatives thereto, and that a reasonably prudent person in plaintiff's position would not have agreed to have the treatment if provided the appropriate information; that by accepting treatment by defendant, plaintiff did [***4] not expressly assume risk of injury to herself, but did impliedly assume such risk; that defendant was 51% responsible for plaintiff's injuries, while plaintiff was 49% responsible; that plaintiff was entitled to damages for pain and suffering sustained prior to verdict of $ 2,500,000 and $ 2,000,000 for future suffering, as well $ 125,000 for past loss of earnings and $ 75,000 for future loss of earnings; and finally that plaintiff was entitled to punitive damages. At the separate punitive damages aspect of the trial, the jury awarded plaintiff an additional $ 150,000.

Defendant argues that if the verdict is sustained he will not be able to practice and this will send a chill to all alternative medicine practitioners. He notes that in 1994 the State Legislature recognized the work of nonconventional physicians when in chapter 558 of the Laws of 1994 it amended Education Law § 6527 by adding paragraph (e) to subdivision (4) to specifically provide that the law does not prevent a "physician's use of whatever medical care, conventional or non-conventional, which effectively treats human disease, pain, injury, deformity or physical condition", and that subdivision (1) of section [***5] 230 of the Public Health Law was amended to provide that no less than 2 of the 18 members of the Board for Professional Medical Conduct "shall be physicians who dedicate a significant portion of their practice to the use of non-conventional medical treatments".

During the course of the trial, a telecast of a two-hour lecture by one of the more famous practitioners of alternative medicine, Dr. Andrew Weil, was broadcast on public television, during which he indicated that the use of chemotherapy and radiation for the treatment of cancer will be a thing of the past. At the request of plaintiff's counsel, the court inquired [*231] whether any of the jurors had seen the telecast and, when it was indicated that none had seen the program, instructed them not to view its rebroadcast. In his 1995 "number one" bestseller, Spontaneous Healing, Dr. Weil wrote (at 268-276):

"Current therapies for cancer, both conventional and alternative, are far from satisfactory. Conventional medicine has three main treatments: surgery, radiation, and chemotherapy, of which only the first makes sense ...

"Radiation and chemotherapy are crude treatments that will be obsolete before long ... If you [***6] have cancer and are faced with a decision about whether to use conventional therapies, the question you must try to answer is this: Will the damage done to the cancer justify the damage done to the immune system? ...

"Cancer treatments abound in the world of alternative medicine, most of them much less toxic than radiation and chemotherapy, but none of them works reliably for large numbers of patients. Many of the therapies I have looked into appear to have induced remissions in some people; in many more they improve quality of life for a time, yet the cancers remain and continue to grow ...

"New and better cancer treatment is on the horizon in the form of immunotherapy, methods that will take advantage of natural healing mechanisms to recognize and destroy malignant cells without harming normal ones. In the meantime, a concerted effort to discover and study cases of spontaneous remission may help us understand that phenomenon and increase its incidence. To make wise decisions regarding the use of existing therapies for cancer, [**668] you must have reliable information about their benefits and risks."

In the May 12, 1997 issue of Time Magazine, which had a photograph [***7] of Dr. Weil on the cover with the subtitle: "Is it sound advice or snake oil?", a former editor of the New England Journal of Medicine is quoted as saying of Dr. Weil (at 75): "I resent well-educated people exploiting irrational elements in our culture, and that's what he's doing." The reporters in the article conclude (at 75): "The debate between alternative and mainstream medicine will not get settled anytime soon ... [What is not] clear--at least for now--is whether Weil and other alternative healers are selling real cures or ... just casting good spells."

While there may be a public debate as to the merits of certain practices of nonconventional physicians, there was no [*232] similar debate with respect to the evidence at this trial. The standard for proving negligence in a malpractice case is whether the treatment deviates from accepted medical standards ( Jackson v Presbyterian Hosp., 227 AD2d 236 [1st Dept 1996]). There was no testimony on behalf of defendant on this issue. Moreover, it would seem that no practitioner of alternative medicine could prevail on such a question as the reference to the term "non-conventional" may well necessitate a finding that [***8] the doctor who practices such medicine deviates from "accepted" medical standards. This indeed creates a problem for such physicians which perhaps can only be solved by having the patient execute a comprehensive consent containing appropriate information as to the risks involved. In this connection, in Schneider v Revici (817 F2d 987 [2d Cir 1987]), where although the court stated that "an informed decision to avoid surgery and conventional chemotherapy is within the patient's right", and there is "no reason why a patient should not be allowed to make an informed decision to go outside currently approved medical methods in search for an unconventional treatment", it declined to enforce the covenant not to sue executed by the patient, but said it was appropriate for the jury to determine whether the language of the form she signed and "testimony relating to specific consent informed by her awareness of the risk of refusing conventional treatment" amounted to an express assumption of risk that would totally bar recovery (at 995-996). In Boyle v Revici (961 F2d 1060 [2d Cir 1992] [a case involving the same nonconventional physician as in Schneider, supra]), the [***9] court ruled that even without a written consent the jury should, based on the evidence, have been permitted to determine whether plaintiff "knowingly accepted all of the risks of a defendant's negligence" (at 1063), and thus expressly assumed the risk of injury to herself.

On the issue of proximate cause, while there was conflicting evidence, the jury was entitled to find, in accordance with the testimony of plaintiff's expert (Dr. Holland), that if plaintiff were not improperly dissuaded from undertaking conventional treatment the cancer probably would not have metastasized and she would not have had the recurrence and the resulting blindness and back problems. Plaintiff's experts also testified that the hair test employed by defendant to ascertain the presence of cancer was completely bogus, the treatment provided by him was of no value, and (in addition to being damaging in the sense that plaintiff was persuaded not to undergo conventional treatment) was harmful in that the nutrition provided aided the growth of the cancer cells. [*233]

Thus, the jury's findings on the questions of negligence and proximate cause cannot be said to be against the weight of the evidence [***10] or lacking a rational basis. The same can be said about its findings on the cause of action for lack of informed consent as there clearly was evidence to support the conclusion that defendant did not provide "appropriate information" with respect to the risks of, and the alternatives to, employing his protocol alone and not combining it with conventional treatment.

On the question of assumption of risk, the jury was asked both whether plaintiff expressly assumed the risk of injury to herself in agreeing to defendant's protocol (a finding of which would have exonerated defendant), and whether she impliedly assumed [**669] a risk of injury (a finding of which would, and did, bring into play the comparative fault provisions of CPLR article 14-A). (See, Arbegast v Board of Educ., 65 NY2d 161 [1985]).

With respect to the jury determination that plaintiff "impliedly" assumed risk of injury to herself in agreeing to undergo the treatment, plaintiff's counsel states that the question thus posed is "whether or not plaintiff had knowledge and a full understanding of the risks of harm of defendant's proposed treatment from a source other than defendant himself" (plaintiff's [***11] mem of law, at 7). Counsel argues that she did not. However, the evidence showed that plaintiff was a well-educated person who, together with her husband and daughter, did a significant amount of investigation regarding the treatment being offered by defendant and hence became quite knowledgeable on the subject, and that she sought to avoid the suffering that accompanied the chemotherapy/radiation regimen that she had witnessed when a relative had undertaken that treatment. Thus, even though the jury found that defendant had not given appropriate information regarding the risks of his procedure and the available alternatives, it was within the province of the jury, based on the evidence, for it to also find that plaintiff independently obtained sufficient information about the treatment so as to conclude that there was an implied assumption of risk when she agreed to follow defendant's protocol. (See, Boyle v Revici, supra; Schneider v Revici, supra.)

Pertaining to the award of punitive damages, such "damages have been allowed in cases where the wrong complained of is morally culpable, or is actuated by evil and reprehensible motives, not only to punish the defendant but [***12] to deter him, as [*234] well as others who might otherwise be so prompted, from indulging in similar conduct in the future" ( Walker v Sheldon, 10 NY2d 401, 404 [1961]). In cases involving motions directed to a pleading or for summary judgment, it has been held that punitive damages may be awarded in a medical malpractice case (e.g., Graham v Columbia-Presbyterian Med. Ctr., 185 AD2d 753, 754 [1st Dept 1992] [conduct that is " 'intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence' " may support an award of punitive damages]; Frenya v Champlain Val. Physicians' Hosp. Med. Ctr., 133 AD2d 1000, 1000-1001 [3d Dept 1987] [an award of punitive damages requires a showing of "wrongful motive ... willful or intentional misdoing, or a reckless indifference equivalent to willful or intentional misdoing ... (and) in the case of a tort action, the defendant's conduct must be so flagrant as to transcend mere carelessness"]; Jones v Hospital for Joint Diseases & Med. Ctr., 96 AD2d 498 [1st Dept 1983]). However, I have not located any case (other than an assault by a physician) where a verdict for punitive damages in a medical malpractice [***13] case has been upheld on appeal. For a lower court decision, see Gersten v Levin (150 Misc 2d 594 [Sup Ct, NY County 1991]).

In the case at bar, plaintiff offered evidence to show that defendant's practice of prescribing nutrition as a cure was designed to enable companies in which he had a financial interest to sell product. While there was evidence offered by the defendant to the contrary, the jury was entitled to find that defendant's intent in dealing with plaintiff was motivated by greed and that he was reckless in his care of her. It should be noted that although, as aforesaid, there is pending controversy between the medical establishment and nonconventional practitioners, defendant failed to produce a single witness at trial who defended his treatment of plaintiff as medically sound, whereas plaintiff's experts clearly painted him as a charlatan. With only such evidence before it, I cannot say that the jury award on punitive damages was unsupported by the weight of the evidence. That the jury found that plaintiff had knowledge of the risks involved and thus impliedly assumed a risk of injury should not bar the jury from also awarding punitive damages based on [***14] conduct by a physician which it deemed reckless and improperly motivated.

[**670] In summary, both motions to set aside the verdict are denied and a judgment shall be entered in accordance with the jury verdict.

Tags: