Gray v. Gonzalez

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

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 grounds 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.