From The Cancer Chronicles #17
© Sept. 1993 by Ralph W. Moss, Ph.D.
[THIS WAS JUDGE EDWARD I. GREENFIELD'S HISTORIC DECISION VACATING THE ORDER OF THE STATE DEPARTMENT OF HEALTH IN THE CASE OF DR. ROBERT ATKINS --RWM]
"...The court finds...that directive [suspending Atkins's license]...to be arbitrary, capricious, and overbroad. From the facts, it appears that Dr. Atkins has over 5,000 patients, 10 of whom are receiving the disputed treatment of ozone therapy for cancer, including Mrs. Coy....
"In the absence of any hearing, I don¹t see how the Commissioner can jump to the conclusion that the administering of ozone therapy, which evidently is practiced with approval in other jurisdictions, itself constitutes an imminent danger to the health of patients in the state of New York, without more scientific evidence produced.
"That seems to me to be a hastily arrived at conclusion. Patients of course have the right to choose a mode of treatment, or indeed to choose non-treatment, if they are adults capable of arriving at a decision for their own reasons. Of course, there are many cases where patients have refused treatments which are medically indicated, in which the overwhelming number of physicians would say are necessary. Here, we have what is evidently a disputed method of treatment as to its effectiveness and I am not aware that there was any showing that the administration of that therapy does in fact present an imminent danger, even though it might be ineffective; but that is not the status on which this order has proceeded.
Individual complaints are treated in medical malpractice actions, not all of which result in suspensions; and certainly it would be very rare or unknown for a doctor to be totally barred from the practice of medicine because of an allegation of negligence. In this case she was not turned out into the street to wander about by herself. So, at worst you would have a debateable condition as to whether or not hospitalization was called for.
Counsel for petitioner has indicated there may be some element of vindictiveness involved in issuing the summary suspension order prior to the hearingŠcertainly we are not going to permit a person¹s right to contest charges in a legal forum to restrict rights that he otherwise has. That would be to approve the practice of a new kind of legal medicine that you might call "cryo-forensics," i.e., it would have an extreme chilling effect on litigation.
It does seem to me that the reaction of the Commissioner under the circumstances presented here was overly vigorous and overly broad, and so the court will direct that the summary suspension order be vacated pending the scheduled hearing before Mr. Justice Tom.
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