## Facts

- Cecelia Zyjewski, age 65, was diagnosed with cancer in March 1982 and was advised by conventional specialists to undergo prompt surgery, which they believed offered a very good chance of recovery.
- Zyjewski declined surgery and sought noninvasive alternatives.
- She consulted Dr. Emanuel Revici at the Institute of Applied Biology, which provided nonconventional cancer therapy involving urine testing and ingestion of mineral compounds claimed to slow tumor growth.
- Evidence indicated Revici told Zyjewski he believed he could cure her, disclosed that the treatment was not FDA-approved, and stated he could not guarantee results.
- Zyjewski pursued Revici’s regimen; her condition worsened. She sued for medical malpractice, seeking damages for pain and suffering and wrongful death.
- The parties stipulated that Revici’s cancer-treatment method was legally negligent because it did not conform to accepted medical standards in the relevant community; the trial focus was causation and defenses.
- Zyjewski died before trial ended; the estate administrator, Arthur Boyle, continued the action.
- The district court instructed the jury on comparative negligence but refused defendants’ request for an express assumption-of-risk instruction.
- The jury awarded $1,353,277.50 in total damages and assigned Zyjewski 5% fault for wrongful death and 10% fault for pain and suffering.

## Issues

1. Whether, under New York law, the evidence required an express assumption-of-risk jury instruction where a patient allegedly rejected conventional cancer treatment and accepted the risks of a nonconventional alternative.
2. Whether the failure to give that instruction was prejudicial error requiring reversal and a new trial.
3. Whether the case should be reassigned to a different district judge on remand.

## Decision

- The Second Circuit reversed and remanded for a new trial.
- The court held the district court erred by refusing to instruct on express assumption of risk where evidence supported that defense.
- The error was not harmless because the omitted instruction affected the framework by which the jury could allocate or bar recovery.
- The court declined to order reassignment to a different district judge on remand.

## Legal Principles

- Under New York law, express assumption of risk may apply in medical malpractice cases where a patient, after disclosure, knowingly rejects conventional treatment, affirmatively chooses an alternative course, and accepts the specific risks that later materialize.
- Express assumption of risk is distinct from comparative negligence: comparative negligence concerns unreasonable self-protective conduct, while express assumption of risk concerns voluntary acceptance of known, particular risks.
- When there is sufficient evidence supporting express assumption of risk, a defendant is entitled to a jury instruction presenting that theory; omission can warrant a new trial if it may have affected the verdict.

## Conclusion

The Second Circuit held that, despite a comparative-negligence charge, the jury should also have been instructed on express assumption of risk because evidence permitted a finding that the patient knowingly accepted the risks of foregoing conventional cancer treatment in favor of Revici’s nonconventional therapy; the failure to give that instruction required a new trial.


Boyle v. Revici, 961 F.2d 1060 (2d Cir. 1992)