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Boyle v. Revici
United States Court of Appeals for the Second Circuit
961 F.2d 1060 (1992)
Conventional cancer specialists advised Cecelia Zyjewski (plaintiff) to have surgery to remove her cancerous tumor. The specialists testified that early surgery would have given her a very good chance of recovery. However, Zyjewski instead explored noninvasive alternatives. Zyjewski, along with her niece and her niece’s husband, Carol and Dominic Palumbo, consulted with alternative-medicine physician Dr. Emanuel Revici (defendant). Dr. Revici claimed his treatment of ingesting various mineral compounds retarded and shrank cancerous tumors. Both Dr. Revici and the Palumbos testified that Dr. Revici told Zyjewski that he thought he could cure her. However, Dr. Revici allegedly told Zyjewski that his treatment was not FDA approved and that he could not offer her any guarantees. When Zyjewski’s condition deteriorated under Dr. Revici’s care, she sued him for medical malpractice. However, Zyjewski passed away, and Arthur Boyle (plaintiff), the administrator of Zyjewski’s estate, continued the lawsuit. Both parties stipulated that Dr. Revici’s treatment was legally negligent in that it did not conform to accepted medical standards in New York. Dr. Revici presented evidence that Zyjewski forwent conventional treatment and knowingly chose and accepted the risks of his treatment. Dr. Revici asked the district court to instruct the jury on express assumption of the risk. Boyle argued that Dr. Revici could not produce a consent form signed by Zyjewski and suggested that an express-assumption-of-the-risk charge was not appropriate because of this failure. The district court did not instruct the jury on express assumption of the risk and instructed the jury to reduce any award to Zyjewski by an amount representing Zyjewski’s own negligence. The jury rendered a verdict for Zyjewski on wrongful death and on pain and suffering but found that she was five percent liable for her own death and 10 percent liable for her own pain and suffering. Dr. Revici appealed.
Rule of Law
Holding and Reasoning (Meskill, J.)
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