Appeal from judgment entered in the United States District Court for the Southern District of New York (Motley, J.) in an action for medical malpractice arising out of unconventional, non-surgical treatment for breast cancer.
Newman and Miner, Circuit Judges.*fn*
Emanuel Revici, M.D. and the Institute of Applied Biology, Inc. (the "Institute") appeal from a judgment entered in the United States District Court for the Southern District of New York (Motley, J.), in a diversity action arising from Dr. Revici's treatment of plaintiff Edith Schneider's breast cancer with unconventional, non-invasive cancer therapy, after she had been advised by numerous doctors to undergo a biopsy and had refused to do so. Edith Schneider and her husband asserted four claims against Dr. Revici and the Institute: (1) fraud, premised on Dr. Revici's alleged promise to cure Mrs. Schneider of breast cancer; (2) medical malpractice; (3) a claim for lack of informed consent under N.Y. Pub. Health Law § 2805-d; and, (4) a derivative claim asserted by Mr. Schneider for loss of consortium. After the district judge refused to charge the jury on the affirmative defense of express assumption of risk, the jury returned a verdict for the plaintiffs on the medical malpractice claim, and a loss of consortium claim. It awarded Edith Schneider and her husband $1,000,000.00 and $50,000.00 respectively. Because the jury found that Mrs. Schneider was equally responsible, through her own culpable conduct, for the damages she suffered, the awards were halved to $500,000.00 and $25,000.00, pursuant to New York's comparative negligence statute, N.Y. Civ. Prac. L. & R. 1411.
On appeal, Dr. Revici and the Institute challenge the district court's refusal to charge with respect to an alleged covenant not to sue and express assumption of risk as affirmative defenses, either of which would serve as a total bar to recovery. Appellants also contend that numerous evidentiary rulings were erroneous. Because we hold that express assumption of risk was available as a total defense to this action under New York law, we reverse and remand this case for determination of that issue only.
In October 1981, Dr. Cocoziello discovered a lump in appellee Edith Schneider's right breast during her annual gynecological checkup. Dr. Cocoziello referred Mrs. Schneider to Drs. Snyder and Lichy, who performed a bilateral mammogram and compared the results to one taken in 1978. Dr. Lichy's report indicated the presence of a "one centimeter nodulation" in the right breast, and advised a biopsy, both in the report to Dr. Cocoziello and by telephone to Mrs. Schneider. Joint App. at 1229. Mrs. Schneider told Dr. Lichy that she did not want a biopsy and would seek a doctor who would treat her nonsurgically. Id. Dr. Cocoziello also urged Mrs. Schneider to have a biopsy and referred her to three general surgeons: Dr. Abessi, Dr. Addeo, and Dr. Volke. Mrs. Schneider was examined by Dr. Abessi and Dr. Volke, who both separately advised her to undergo a biopsy and possibly a partial mastectomy, depending upon the analysis of the biopsied tissue. She refused. Id. at 1241.
In November 1981, Mrs. Schneider consulted with Dr. Emanuel Revici, defendant-appellant herein, who is the President and Scientific Director of the Institute. Dr. Revici is a physician and researcher who treats cancer patients with "non-toxic," non-invasive methods that have not been adopted by the medical community. Mrs. Schneider had learned of Dr. Revici and his novel cancer therapy from a radio program. After Mrs. Schneider signed a detailed consent form,*fn1 Dr. Revici diagnosed cancer of the right breast and began treatment with selenium and dietary restrictions. While Mrs. Schneider claims that Dr. Revici never advised either a biopsy or surgery, Joint App. at 485, his records show that in February 1982, and on three later occasions, he recommended that she have the tumor surgically removed. Joint App. at 1104-05. After fourteen months of treatment, the tumor had increased in size, and cancer had spread to her lymph system and left breast. Mrs. Schneider finally underwent a bilateral mastectomy at Memorial Sloan-Kettering Hospital in January 1983, followed by sixteen months of conventional chemotherapy.
Mrs. Schneider brought this diversity action against Dr. Revici and the Institute for damages, alleging common law fraud, common law medical malpractice and lack of informed consent pursuant to N.Y. Pub. Health Law § 2805-d. Mr. Schneider also sued for loss of consortium. On the eve of trial, defendants sought leave either to clarify their Third Affirmative Defense of "culpable conduct" or to amend their answer to include express assumption of risk as an affirmative defense. In a pre-trial order, dated November 11, 1985, the trial judge denied the motion, apparently on the grounds that express assumption of risk is unavailable as a defense to medical malpractice under New York law:
Defendant's request for application of the assumption of risk doctrine . . . is denied. The law of medical malpractice and informed consent are well-established areas of jurisprudence in N.Y. State. This case will be tried in accordance with those well-established principles, including the doctrine of comparative negligence.
Joint App. at 85-86. The court denied a similar oral motion on the first day of trial and, at the end of trial, refused to charge the jury on express assumption of risk. Joint App. at 134-35, 97-98.
The jury returned a verdict for Mrs. Schneider solely on the medical malpractice claim, and awarded $1,000,000.00 and $50,000.00 to her and her husband respectively. The jury found, however, that Mrs. Schneider was 50 % comparatively negligent, and both awards were thereby halved to $500,000.00 and $25,000.00. On this appeal, appellants contend that the district court erred by refusing to charge as affirmative defenses an alleged covenant not to sue and express assumption of risk, and also erred in certain evidentiary rulings. We hold that, under New York law, express assumption of risk is available as an affirmative defense to a medical malpractice action and if proved, would totally bar recovery by a plaintiff. Therefore we reverse and remand this case to the district court for a new trial of the issue of express assumption of risk.
Appellants' primary assertion of error in the trial court's evidentiary rulings is that the court refused to allow evidence about the effectiveness of the Revici method of cancer treatment to be introduced at trial. In particular, appellants challenge the exclusion of patient records, and the exclusion of Dr. Revici's book entitled Research in Physiopathology As Basis Of Guided Chemotherapy With Special Application To Cancer (1961).
The trial court excluded records of patients successfully treated by Dr. Revici on the grounds that the issue in medical malpractice is not whether a particular treatment is effective but whether that treatment is a deviation from accepted medical practice in the community. The trial court's statement of the law of medical malpractice is correct. Amsler v. Verrilli, 119 A.D.2d 786, 501 N.Y.S.2d 411 (2d Dep't 1986). However, evidence as to the effectiveness of Dr. Revici's treatment method was relevant to show that he did not make a false representation with intent to defraud. See Bankers Trust Co. v. J.V. Dowler & Co., 47 N.Y.2d 128, 390 N.E.2d 766, 417 N.Y.S.2d 47 (1979). Any error in excluding the patient records was clearly harmless, however, in light of the jury's finding that Dr. Revici was not liable on the claim of common law fraud. Dr. Revici's sole liability was founded on medical malpractice, which is amply supported by the record, and the evidence of the effectiveness of his treatment was not relevant to that issue.
Appellants contend that the trial judge erred in excluding Dr. Revici's text on physiopathology at trial, and argue that the text was admissible under the learned treatise ...