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DiRuzzo v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 26, 2018


          On appeal from the 24th District Court of Victoria County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Benavides


          DORI CONTRERAS Justice

         Appellant, Joseph Andrew DiRuzzo, was convicted on sixteen counts of the illegal practice of medicine, each a third degree felony. See Tex. Occ. Code Ann. § 165.152 (West, Westlaw through 2017 1st C.S.). Punishment was assessed at four years' imprisonment and a $1, 500 fine for each count, and the trial court ordered the prison terms to run concurrently. Appellant argues that: (1) the trial court lacked subject matter jurisdiction because the indictment charged only misdemeanors; (2) the convictions violate his constitutional rights to freedom of association, freedom of choice, and privacy; (3) the evidence was legally insufficient to support his conviction; and (4) trial counsel provided ineffective assistance. We affirm as modified.

         I. Background

         A Victoria County grand jury returned an indictment on May 2, 2014, alleging that appellant, a/k/a Joe Delarosa and d/b/a Society for the Study of Cell and Molecular Biology (SSCMB), and Tim McMahan intentionally or knowingly practiced medicine in the state of Texas in violation of subtitle B, title 3 of the occupations code, on sixteen separate occasions between April 12 and October 22, 2013. See id. The sixteen counts each alleged that appellant and McMahan violated the statute "by providing treatment including withdrawal of blood and fluids and injections purported to be 'stem cells' in treatment of medical conditions while not holding a license to practice medicine." The State later filed an amended indictment on October 3, 2014, replacing the words "medical conditions" with the names of two alleged victims, Nelson and Estelle Janssen.

         Nelson Janssen testified at trial that he suffers from diabetes and cellulitis, and that his wife, Estelle, suffered from cancer and is now deceased. Nelson met with appellant, a licensed chiropractor, and agreed to undergo a procedure under which appellant would draw his blood and, about one week later, inject him with "stem cells" derived from his blood. In order to undergo the procedure, Nelson was required to sign a contract and pay a $10 lifetime membership fee to join appellant's organization, SSCMB.

         A copy of the standard SSCMB contract was entered into evidence. It provided in part that SSCMB is "a private membership association under common law whose members seek to help each other achieve better health and live longer with the best possible quality of life." The contract set forth a fee schedule under which an initial consultation was $1, 000, the "initial procedure" was $1, 500 for three "tubes, " and follow- up visits are $500 per "tube, " with three tubes recommended for members fifty years of age and older.

         The contract stated: "Most members of the society report that they experience a noticeable improvement in their health with 5 to 10 visits, but no guarantee of health improvement is hereby made, either expressed or implied, nor is this an offer to treat cure, prevent, or diagnose any disease." The contract also contained the following disclaimers:

The [SSCMB] does not treat, cure, diagnose or prevent any disease, disease state, or any pathologic condition, nor is the practice of medicine conducted at the facilities of the society.
No treatment, treatment plan or plans, or treatment protocol for any disease or pathologic condition is created, administered, delivered, or conducted with the approval of the society, nor will any treatment plan. program, or protocol ever be made by a duly authorized representative of the Society.
It is the assertion of the Society that the body can heal itself, in most cases, given proper support.
Members or the society who have any disease or pathology must in good conscious [sic] and in their best interest for self-preservation retain a licensed physician and/or physicians, to include appropriate specialists, and the society and its members have no authority to advise anyone to delay, refuse, or modify the recommendations of said physician or physicians, nor will such advice ever be made or authorized to be made by the society, or any duly appointed representative thereof.

         Additionally, the contract set forth the organization's "Articles of Association" and contained the following "Memorandum of Understanding":

I hereby acknowledge acceptance of the above Articles of Association. I also acknowledge my understanding those fellow Association members that provide diagnosis, procedures, care and related activities, do so in the capacity of a fellow member. In this relationship between fellow members, they do not act in the capacity of a licensed health care provider.
I further understand that within the SSCMB Association there is never a patient-practitioner, or a patient-physician relationship. Rather, there are only individual membership contracts that provide for member-to-member relationships within the Association.
In addition, I hereby freely choose to reject any legal status as a patient within the present medical health care system, and adopt the legal status of private member of the SSCMB Association. I further understand that it is entirely my own responsibility to consider, accept and adopt any advice, recommendations and services offered to me by my fellow members as to the efficacy, risks and desirability of same.
Accordingly, I acknowledge that any and all assistance given to me by fellow members is provided through my exercise of my free decision in an exercise of my rights that are made for individual members, agents and employees from any unintended adverse experiences and any liability, except for instances of clear and present danger that result from substantial maliciousness or evil acts as may be determined by due process of the SSCMB Association as stated and defined by the United States Supreme Court.
I hereby accept that any and all complaints or grievances against the SSCMB Association, its individual members, agents and employees will be resolved outside of the jurisdictional and authority of federal and state agencies and authorities. A SSCMB Association committee established to insure fairness and integrity will settle all rights of complaints and grievances.
. . . .
l hereby accept that all information about activities within the SSCMB Association are confidential, and agree not to disclose such information to federal, state or local agencies or jurisdictions without prior Association approval from a spokesperson (ASP). Further, I understand that members of the Association are not protected by malpractice insurance, and therefore agree to not pursue civil action for malpractice against a follow member of the Association. Any such malpractice action is considered as a grievance and is handled within the Association, as described above.
I hereby agree to join the SSCMB as a private medical membership association under the legal provisions of United States common law. I enter into this Agreement of my own free will, or on behalf of my dependent, without pressure or undue influence, and without any promise of specific beneficial results.
I affirm that I do not represent any federal or state agency whose purpose is to monitor, supervise or regulate the practice of medicine, understanding that such membership disqualifies me from SSCMB Association membership.

         Nelson testified he paid $1, 500 to SSCMB for each treatment consisting of three tubes, and copies of his checks were entered into evidence. He stated that appellant never told him he was a doctor and that he did not think appellant was a doctor. Nelson testified that he knew he was not getting medical treatment, but he believed appellant's stem cell treatments were helpful and probably added five or six years to his life.

         Several other witnesses also testified that they underwent appellant's stem cell procedures and were satisfied with the results. They testified that appellant did not tell them he was a physician or that he was making any sort of diagnosis.

         The jury found appellant guilty and McMahan not guilty on all sixteen counts. At the punishment phase, appellant testified that he believed he had the constitutional right to do the activities for which he had been found guilty. The jury assessed punishment as set forth ...

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