Opinion
5850
January 15, 2002.
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.
SANDRA D. JANIN, for plaintiff-respondent.
JOHN L.A. LYDDANE, for defendant-appellant.
Before: Andrias, J.P., Rosenberger, Lerner, Buckley, Marlow, JJ.
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 A.D.2d 886, 888-889, lv denied 90 N.Y.2d 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 A.D.2d 309, 313, mod on other grounds 67 N.Y.2d 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 N.Y.2d 161, 169-171). Instead, the jury was correctly instructed to consider whether plaintiff's 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 A.D.2d 72, lv denied 92 N.Y.2d 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.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.