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A lawsuit against Dr. Robert Atkins, the now-deceased promoter of low-carbohydrate diets, will go forward after a Manhattan judge dismissed his estate’s motion for summary judgment. Supreme Court Justice Joan B. Carey ruled, in Roag v. Atkins, 111539/02, that public policy forbade the court from enforcing a legal-release provision in the Atkins Center for Complementary Medicine’s consent form. Plaintiff Carol Rubick first underwent treatment for breast cancer in 1995, when a physician performed a lumpectomy on a malignant tumor in her right breast. The surgeon recommended a standard course of follow-up treatment, but Rubick opted to pursue alternative means instead, according to Carey’s decision. After hearing Atkins promote his cancer treatment strategies on the radio, Rubick made an appointment at the Atkins Center, in Manhattan. When she met with the doctor, he allegedly told her that chemotherapy and radiation would kill her healthy cells, thereby weakening her immune system. He recommended instead “a regimen of vitamins and anti-oxidants known as the Ukraine Protocol,” Carey wrote. Rubick testified that Atkins told her the protocol would “definitely cure” her cancer. Rubick’s cancer however mestastasized into her spine, and she died shortly thereafter. (Dr. Atkins died three months later. Their estates have substituted into the suit.) Shortly before her death, Rubick filed suit alleging that, among other things, the defendants departed from accepted medical practice by encouraging her to forgo chemotherapy and radiation. Veronica Atkins (Atkins’ widow and the executor of his estate) and the Atkins Center moved for summary judgment. They claimed that Rubick waived her right to sue. They offered as proof Rubick’s signed consent form. “I cannot offer this procedure to you except upon the condition that you release my office and myself and any treating persons from any legal responsibility for harm resulting from its use in your case,” the form read. “Your signature on this agreement will constitute a full and final release of any legal responsibility.” Carey ruled the release unenforceable. “The exculpatory agreement at issue here, which purports to excuse the defendants from any liability stemming from the use of the Protocol, offends public policy,” she held. “Additionally, the ‘agreement’ consists of several sentences in the middle of the informed consent form signed by plaintiff’s decedent; no separate heading or caption was present to alert the decedent that she was foregoing the right to bring suit.” Carey also declined to grant the summary judgment motion on the basis of the defendants’ assumption-of-the-risk claim. “[The] defendants failed to make a prima facie showing of entitlement to judgment as a matter of law on this ground,” she wrote. “Rather, the evidence submitted … demonstrates the existence of a material issue of fact in this regard.” Carey did however dismiss the complaint against co-defendant Fred Pescatore, a former Atkins Center physician. She ruled that the claims against him were time-barred. Stephanie L. Gold and Maria Del Pilar Ocasio-Douglas of Bauman, Kunkis & Ocasio-Douglas represented the plaintiff. James Gandy, Dawn L. Bristol and Michael A. Ellenberg of Ellenberg & Rigby represented the defense. The suits marks at least the second time that Atkins’ breast cancer treatments have resulted in litigation. The New York State Board of Professional Medical Conduct’s investigation of his use of “ozone therapy” in 1992 culminated in a protracted lawsuit.

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