Gray v. Gonzalez

Appellate Division of the Supreme Court of New York

Gray v. Gonzalez

290 A.D.2d 292, 735 N.Y.S.2d 776, 2002 N.Y. App. Div. LEXIS 294

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 15, 2002

StatusPublished

Cited by2 cases

This text of 290 A.D.2d 292 (Gray v. Gonzalez) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gray v. Gonzalez, 290 A.D.2d 292, 735 N.Y.S.2d 776, 2002 N.Y. App. Div. LEXIS 294 (N.Y. Ct. App. 2002).

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Opinion

Judgment, Supreme Court, New York County (Ira Gammerman, J., and a jury), entered May 30, 2000, in a wrongful death and medical malpractice action involving non-conventional treatment for cancer, inter alia, apportioning culpable conduct 49% against defendant physician and 51% against plaintiff’s decedent, unanimously affirmed, with costs.

The standard duty of care in a medical malpractice action is the same for all physicians in this State regardless of whether they practice conventional or non-conventional therapies (see, Matter of Gonzalez v New York State Dept. of Health, 232 AD2d 886, 888-889, lv denied 90 NY2d 801). A different standard of care is not implicit in Education Law § 6527 (4) (e), which permits “[t]he physician’s use of whatever medical care, conventional or non-conventional, which effectively treats human disease, pain, injury, deformity or physical condition,” or in a patient’s acceptance of non-conventional therapies, which, by itself, does not constitute an express assumption of risk (see, id.; cf., Suria v Shiffman, 107 AD2d 309, 313, mod on other [293]*293grounds 67 NY2d 87). Nor does the record support a finding of an express, as opposed to an implied, assumption of risk, such as might have warranted a jury charge on express assumption of risk (cf., Arbegast v Board of Educ., 65 NY2d 161, 169-171). Instead, the jury was correctly instructed to consider whether plaintiffs decedent’s acceptance of and adherence to defendant’s non-conventional therapies was culpable conduct that implicitly assumed the risk entailed thereby, and, if so, the degree to which such conduct contributed to her injuries and death (see, Charell v Gonzalez, 251 AD2d 72, lv denied 92 NY2d 816). We have considered defendant’s other arguments, including that the trial court’s bias deprived him of a fair trial, and find them to be unavailing or without merit. Concur — Andrias, J.P., Rosenberger, Lerner, Buckley and Marlow, JJ.

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Judgment, Supreme Court, New York County (Ira Gammerman, J., and a jury), entered May 30, 2000, in a wrongful death and medical malpractice action involving non-conventional treatment for cancer, inter alia, apportioning culpable conduct 49% against defendant physician and 51% against plaintiff’s decedent, unanimously affirmed, with costs.

The standard duty of care in a medical malpractice action is the same for all physicians in this State regardless of whether they practice conventional or non-conventional therapies (see, Matter of Gonzalez v New York State Dept. of Health, 232 AD2d 886, 888-889, lv denied 90 NY2d 801). A different standard of care is not implicit in Education Law § 6527 (4) (e), which permits “[t]he physician’s use of whatever medical care, conventional or non-conventional, which effectively treats human disease, pain, injury, deformity or physical condition,” or in a patient’s acceptance of non-conventional therapies, which, by itself, does not constitute an express assumption of risk (see, id.; cf., Suria v Shiffman, 107 AD2d 309, 313, mod on other [293]*293grounds 67 NY2d 87). Nor does the record support a finding of an express, as opposed to an implied, assumption of risk, such as might have warranted a jury charge on express assumption of risk (cf., Arbegast v Board of Educ., 65 NY2d 161, 169-171). Instead, the jury was correctly instructed to consider whether plaintiffs decedent’s acceptance of and adherence to defendant’s non-conventional therapies was culpable conduct that implicitly assumed the risk entailed thereby, and, if so, the degree to which such conduct contributed to her injuries and death (see, Charell v Gonzalez, 251 AD2d 72, lv denied 92 NY2d 816). We have considered defendant’s other arguments, including that the trial court’s bias deprived him of a fair trial, and find them to be unavailing or without merit. Concur — Andrias, J.P., Rosenberger, Lerner, Buckley and Marlow, JJ.

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Bluebook (online)

290 A.D.2d 292, 735 N.Y.S.2d 776, 2002 N.Y. App. Div. LEXIS 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-gonzalez-nyappdiv-2002.

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