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Harvey Wachsman, the imposing physician-lawyer who pleaded the case, claimed that Mrs. Zyjewski would have probably lived if she had followed her doctors orders, and that Revici in effect caused her death by giving her worthless medicine.
The jury agreed with him and awarded her nephew about $1.3 million in damages. This case, entitled Boyle vs. Revici (83 civ. 8997), is the second of two trials argued by Wachsman, a determined foe of unorthodox cancer therapies. As the trial got under way, Revici was vilified in Ray Kerrisonšs column in the New York Post. "Park Avenuešs doctor of death," screamed one headline. "Itšs a disgrace he still practices," said another. Kerrison accused the 93-year-old Rumanian-born physician of leading a "following so devout it amounts almost to a cult" (July 10, 1989). Nothing was said about the many rational people who feel this doctor has saved their lives.
Even more destructive was Wachsman's Op-Ed piece in the New York Times, "Doctors Who Maim and Kill" (August 25, 1989). According to attorney Sam Abady, Wachsman has retained high powered public relations flack Howard J. Rubenstein to help him gain publicity.
The struggle over Revici's method has become a battleground for the freedom of choice movement. Wachsman won a previous trial against Revici but that was overturned on appeal by the legal firm of Abady and Jaffe. In that case, these New York lawyers, who often defend unconventional physicians, won a landmark victory when the United States Court of Appeals for the Second Circuit ruled that patients can expressly "assume the risk of medical malpractice" thereby absolving the doctor of further responsibility for the outcome.
"We see no reason why a patient should not be allowed to make an informed decision to go outside currently approved medical methods in search of an unconventional treatment," the Appeals Court wrote. "While a patient should be encouraged to exercise care for his own safety, we believe that an informed decision to avoid surgery and conventional chemotherapy is within the patientšs right to determine what shall be done with his own body.' "
This was a landmark decision in the struggle for freedom of choice. In this case, Judge Lowe, who presided over the latest trial, all but ignored this ruling of the higher court. She repeatedly interrupted attorney Jaffe for allegedly leading his witness. She also would not allow speaking objections. In one session, on July 12, Jaffe repeatedly objected and Lowe repeatedly overruled him. Finally, in evident frustration, Jaffe asked how she could overrule him if she didn't hear his objection? Her reply was that she had been a judge long enough to know what his objections would be!
Finally Lowe found Jaffe in contempt, threatening him with a $500 fine for every leading question. At the same time she allowed some questionable behavior on Wachsmanšs part--as when he repeated, over and over, gruesome medical details of Ms. Zyjewski's last days. Once was informative--perhaps; but the repetition could not help but prejudice the jury against the old and frail-looking researcher. The judge allowed Wachsman to put an orthodox cancer specialist the stand to testify that Revicišs medicines were out of the mainstream, but refused to allow Dr. Seymour Brenner to testify in Revicišs defense.
At the same time, Lowe so rattled Ms. Zyjewskišs niece, Carol Palumbo, that this key witness was unable to testify--as she intended-- on Revicišs behalf.
It is behavior like this which has made Judge Lowe a byword in legal circles. In 1983, American Lawyer, a national monthly magazine said, "Judge Lowe--with her unpredictable rages, her bias and her apparent suspicion of conspiracy--is as difficult to fathom as some of her rulings."
Abady and Jaffe are preparing a motion for a new trial based primarily on the judge's handling of Carole Palumbo's testimony. They are confident that the higher courts will once again affirm the patientšs freedom of choice in cancer therapy.