## Facts

- Edith Schneider was advised after a mammogram revealed a right-breast nodulation to undergo a biopsy, but she refused and sought nonsurgical treatment.
- Schneider consulted Dr. Emanuel Revici, who offered an unconventional cancer regimen described as metabolic/biological and including selenium and dietary controls.
- At the outset of treatment, Schneider signed a document stating Revici’s methods were experimental, not approved by conventional authorities, provided no guarantee of cure or improvement, and purported to release Revici and his institute from liability.
- Schneider knew Revici’s approach was outside mainstream medicine and pursued it to avoid surgery.
- During Revici’s treatment, the tumor enlarged and metastasized to the lymphatic system.
- Schneider later discontinued Revici’s care, underwent conventional hospital treatment including bilateral mastectomy, and received about 16 months of chemotherapy.

## Issues

1. Under New York law, does express assumption of risk remain a complete defense in a medical malpractice action, and did the trial court err by refusing to instruct the jury on that defense?
2. Did the trial court err by refusing to instruct the jury on a covenant not to sue allegedly contained in the signed treatment document?

## Decision

- The Second Circuit reversed the judgment and remanded for further proceedings limited to the express-assumption-of-risk issue.
- The court held that New York’s comparative negligence statute did not abolish “true” express assumption of risk as a complete bar to recovery.
- The evidence (including Schneider’s refusal of biopsy, awareness of the unconventional nature of treatment, and the signed document’s warnings and release language) was sufficient to require a jury instruction on express assumption of risk.
- The jury’s prior comparative-fault allocation did not resolve express assumption of risk because the jury was not instructed that express assumption could bar recovery entirely.

## Legal Principles

- Under New York law, express assumption of risk—shown by express agreement or by words or conduct manifesting willingness to accept a particular risk—may operate as a complete defense, notwithstanding comparative negligence.
- Comparative negligence generally subsumes implied assumption of risk into apportionment of culpable conduct, but it does not eliminate express assumption of risk, which may negate a duty as to the accepted risks.
- A pre-treatment writing that characterizes care as experimental and disclaims guarantees, even if not ultimately enforceable as a contractual release, can be probative evidence of a patient’s knowing and voluntary acceptance of specific treatment risks.
- The existence, scope, and effect of release or covenant-not-to-sue language in a medical context may raise public-policy and factual questions that require jury consideration.

## Conclusion

The appellate court required a new, limited trial because the jury should have been instructed that, if Schneider knowingly and voluntarily accepted the risks of Revici’s unconventional treatment, express assumption of risk could bar recovery entirely under New York law.


Schneider v. Revici, 817 F.2d 987 (2d Cir. 1987)