In 2006, survivors of Dennis G. McDaniel filed suit against Gregory Haag, Tosca Haag, and Vivian V. Vetrano charging that their treatment has resulted in McDaniel’s death. For many years, according to their Web sites, the trio operated the Rest of Your Life (ROYL) Retreat in La Vernia, Texas, where they offered fasting and other “natural hygiene” approaches. The suit charged that McDaniel’s death [at age 55] was triggered by two weeks of complete fasting followed by two more weeks of severe dietary restriction. Vetrano, who is Haag’s natural mother, claimed she was merely a visitor to the retreat, but the court ruled that that should be decided by a jury. The plaintiffs then filed an amended complaint (shown below), but the case was settled before trial. The settlement terms are not in the court record, but a recent fundraising appeal states the trio “was left with $150,000 in lawyers’ fees and $1,000,000 in a high interest loan.”
Natural hygiene, an offshoot of naturopathy, is a philosophy of health and “natural living” that opposes most medical treatments and advocates (a) eating a “raw food” diet of vegetables, fruits, and nuts, (b) periodic fasting, and (c) “food combining” (avoiding food combinations it considers detrimental). In 1982, a federal court jury awarded over $800,000 to the survivors of a 49-year-old man who died after undergoing a distilled water fast for 30 days at Shelton’s Health School, where Vetrano worked as an associate.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
|TERESA McDANIEL, Individually and as
Independent Executrix of the Estate of
DENNIS G. McDANIEL, Deceased;
SAMUEL McDANIEL, Individually; and
LOUIS McDANIEL, Individually,
GREGORY 1. HAAG, TOSCA HAAG,
PLAINTIFFS’ FIRST AMENDED ORIGINAL COMPLAINT
TO THE HONORABLE U.S. DISTRICT JUDGE:
1. This is a civil action for money damages resulting from the wrongful death of DENNIS G. McDANIEL, brought by his wife, TERESA McDANIEL, INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF DENNIS G. McDANIEL, DECEASED, and his sons, SAMUEL McDANIEL and LOUIS McDANIEL, against GREGORY 1. HAAG, TOSCA HAAG, and VIVIAN VIRGINIA VETRANO, individually and jointly d/b/a REST OF YOUR LIFE (ROYL) RETREAT. Plaintiffs’ causes of action against Defendants, jointly and severally, are based upon common law negligence, statutory gross negligence, common law fraud, and, alternatively, as a health care claim pursuant to Chapter 74 of the Texas Civil Practices and Remedies Code, hereinafter “The Code.”
JURISDICTION AND VENUE
2. This court has jurisdiction pursuant to 28 U.S.C. § 1332(a) and (c), in that the matter in controversy exceeds the sum of $75,000.00, exclusive of interest and costs, and is between citizens of different States. Venue is proper in this court pursuant to 28 U.S.C. § 1391(a), in that this action is founded only on diversity of citizenship, and the events giving rise to this claim occurred within the San Antonio Division of this judicial district. Plaintiffs are citizens of the State of Florida. Defendants are citizens of the State of Texas, and their contacts in this district, i.e., the commission of a tort, are sufficient to subject them to personal jurisdiction.
PARTIES AND SERVICE
3. At all time material hereto, DENNIS G. McDANIEL, Deceased, (hereinafter “Plaintiffs’ decedent” or “Mr. McDANIEL”) was and Plaintiffs were and are citizens of the State of Florida. TERESA McDANIEL is the Independent Executrix of the Estate of DENNIS O. McDANIEL in the State of Florida.
4. Defendant GREGORY 1. HAAG and Defendant TOSCA HAAG claim to be husband and wife. They reside in Bexar County, Texas but do business as REST OF YOUR LIFE (ROYL) RETREAT in La Vernia, Wilson County, Texas. Defendant VIVIAN VIRGINIA VETRANO is the natural mother of TOSCA HAAG and resides and does business at the premises on which ROYL is located in La Vernia, Wilson County, Texas.
5. At all times material, ROYL was represented by Defendants in print and electronic media to Plaintiffs’ decedent and to the public generally, and Defendants HAAG so represented, that each was a medical doctor and that ROYL was a medical health facility to promote natural hygiene by “not practicing regular medicine, but, rather, by an all natural, holistic medicine by nutritional consultation and education.” Neither ROYL nor any of Defendants were duly licensed, certified, registered, or chartered by the State of Texas to provide health care and, therefore, none of them was a health care provider pursuant to §74.00(a)(2)(A) of The Code. Defendants’ representations, as aforesaid, were designed to cause a reasonably prudent person in the exercise of ordinary care to believe that Defendants were providing health care and practicing medicine, as those terms are defined by The Code. After reading Defendants’ literature and other information, and in reliance thereon, Plaintiffs’ decedent presented himself to ROYL in LaVernia, Wilson County, Texas as a patient, on or about August 13,2005, for a program of fasting to reduce his body weight and to help eliminate other health problems. As a proximate cause of Defendants’ joint and several wrongful conduct, as described below, Mr. McDANIEL was caused to die a starving death.
6. Defendants placed Mr. McDANIEL on a two week fasting program with no known nutritional intake other than water. Thereafter, Defendant TOSCA HAAG allowed Mr. McDANIEL to receive “food” in the form of a concoction known as “nut milk,” and to slowly return to “food” by ingesting raw fruits, vegetables, and nuts/seeds prepared by TOSCA HAAG and ROYL employees or agents. Such purported “alternative medical treatment” by Defendants, jointly and severally, who monitored, directed, controlled and administered the fasting regimen, was administered for the alleged purpose of reducing and removing toxins from Mr. McDANIEL’s body, in order to produce weight loss, eradicate high blood pressure, eradicate diabetes, and eradicate other ailments. Defendants, jointly and severally, determined that the “alternative medical treatment” that they prescribed for Mr. McDANIEL required additional fasting and rest in their care, so that the same was continued by Defendants after the end of the origina1.two-week regimen.
7. DENNIS G. McDANIEL, in reliance upon Defendants’ joint and several representations and his belief that Defendants were careful and competent medical doctors and/or registered, licensed, certified or chartered health care providers by the State of Texas, agreed to continue with more “nut milk” and “food” in additional amounts until on or about September 8, 2005, when Mr. McDANIEL was becoming more physically ill than he had been while receiving Defendants’ treatment. Mr. McDANIEL reported his discomfort and feeling of illness to Defendants.
8. On or about September 8, 2005, certain of DENNIS G. McDANIEL’s internal organs began to fail performing normal bodily functions. Nevertheless, Defendants persisted in claiming to Mr. McDANIEL that their expertise and knowledge of “alternative health care” and/or “alternative medicine” required Mr. McDANIEL to continue on the “nut milk” and/or “food” program. In reliance on Defendants’. false representations, Mr. McDANIEL followed Defendants’ advice until he became so ill that he was unresponsive, no communicative, and comatose while under the control, supervision and/or care of Defendants, jointly and severally. Finally, Defendants acknowledged Mr. McDANIEL’s grave physical condition and sought properly qualified emergency medical and health care treatment at a local hospital.
9. Despite heroic attempts to save the life of DENNIS G. McDANIEL by competent health care personnel, Mr. McDANIEL continued to suffer with dehydration, malnutrition, diarrhea, low blood pressure, elevated pulse, and elevated fever, resulting in acute renal failure, acute respiratory distress and cardiac failure. DENNIS G. McDANIEL’s physical condition continued to deteriorate, despite competent efforts to save his life, and he died on September 24, 2005 as a proximate result of the wrongful conduct of Defendants, jointly and severally.
FIRST CAUSE OF ACTION – NEGLIGENCE
10. Plaintiffs incorporate by reference the averments contained in paragraphs 1-9 and adopt them as if set out verbatim herein.
11. At all times material hereto, each Defendant owed a duty to DENNIS G. McDANIEL and Plaintiffs to exercise ordinary care to provide competent and careful treatment for Plaintiffs’ decedent while enrolled at ROY1. Defendants each breached that duty by acts of commission and omission, individually, and by and through their agents and employees. Such negligence, taken separately and together with others, was a proximate cause of the wrongful death of DENNIS G. McDANIEL and the compensatory damages sustained by Plaintiffs, as follows:
- In failing to provide an adequate and necessary pre-admission examination to DENNIS G. McDANIEL by a qualified health care provider to determine whether or not he was a proper candidate for the type of “treatment” which Defendants provided;
- In failing to follow a practice to refuse treatment to DENNIS G. McDANIEL until Defendants received his medical records from one or more treating physicians to present to a qualified physician to establish that Mr. McDANIEL’s physical health was sufficiently strong to tolerate the type of “treatment” which Defendants provided;
- In inviting, accepting, and allowing DENNIS G. McDANIEL to be admitted to their program for fasting, natural hygiene, and education without consulting any licensed physician with regard to his current medical condition and/or assessing his current medical condition to determine whether or not his physical health was sufficiently strong to withstand the “treatment” which Defendants provided;
- In administering to DENNIS G. McDANIEL the untested, unlicensed, uncertified, undocumented, non-medical procedures of fasting, dehydration, and administration of “nut milk” and raw “food” without proper monitoring of Mr. McDANIEL’s health by a licensed health care provider;
- In diagnosing conditions with regard to morbid obesity, super morbid obesity, and care for high blood pressure, diabetes, and other internal organ problems being experienced by DENNIS G. McDANIEL by persons other than licensed health care providers;
- In failing to daily monitor DENNIS G. McDANIEL’ s vital signs and health condition to realize that the treatment administered was causing his health to decline and not improve;
- In failing to properly provide any licensed medical staff to treat and monitor DENNIS G. McDANIEL’s condition;
- In allowing DENNIS G. McDANIEL to develop renal failure, sepsis, pancreatitis, and eventually subside into a coma while under their care;
- In failing to diagnose properly and treat properly DENNIS G. McDANIEL’s diabetes, pancreatitis, acute cholecystitis, metabolic acidosis, sepsis, respiratory failure, hyperkalemia, hypocalcemia, and/or hypotension, tachycardia, fever, diarrhea, and acute renal failure;
- In failing to determine through standard and customary medical procedures whether or not DENNIS G. McDANIEL was or was not physically capable of fasting without endangering his health;
- In failing to transfer timely DENNIS G. McDANIEL to an accredited hospital during his stay at ROYL;
- In failing to evaluate DENNIS G. McDANIEL by a licensed physician when Defendants knew or should have known his declining health condition during his stay at ROYL;
- In failing to notify Plaintiff TERESA McDANIEL about DENNIS G. McDANIEL’s declining health condition at the ROYL for the purpose of expediting the needed emergency medical care.
SECOND CAUSE OF ACTION – GROSS NEGLIGENCE
12. Plaintiffs incorporate by reference the averments contained in paragraphs 1-9 and adopt them as if set out verbatim herein.
13. Defendants’ joint and several negligence and wrongful conduct in the maltreatment of DENNIS G. McDANIEL rises to the level of gross negligence, in that, (a) when viewed objectively from the standpoint of the Defendants, at the time of their respective actions and inactions, the conduct of each involved an extreme degree of risk, considering the probability and magnitude of the potential harm to DENNIS G. McDANIEL and, in that, (b) Defendants, jointly and severally, had actual, subjective awareness of the risk involved, but nevertheless, each Defendant proceeded with conscious indifference to the rights, safety and welfare of
DENNIS G. McDANIEL. Such gross negligence is supported by clear and convincing evidence, so that exemplary damages should be awarded to The Estate of DENNIS G. McDANIEL.
THIRD CAUSE OF ACTION – NEGLIGENT MISREPRESENSATION
Plaintiffs incorporate by reference the averments contained in paragraphs 1-9 and adopt them as if set out verbatim herein.
15. Defendants,jointly and severally, made negligent misrepresentations as Defendants were not licensed medical providers, of any type, yet represented to DENNIS G. MCDANIEL and Plaintiffs that they were “medical doctors,” who each had special expertise in their respective areas of “medicine” or “health care” and were qualified to provide safe and competent medical or health care to DENNIS G. MCDANIEL. Particularly, at all material times, Defendants represented that Defendants, GREGORY L. HAAG and TOSCA HAAG, were medical doctors, who, based on their medical training, skill, experience and education, were qualified to carefully and competently treat DENNIS G. McDANIEL and to assist him in losing weight in a healthy and non-injurious manner. Defendant, VIVIAN VETRANO, claimed to be a chiropractor with special skills and knowledge in holistic medicine and alternative medical treatment of the health and medical conditions for which DENNIS G. McDANIEL was suffering at all times material. The aforesaid representations, along with others, were made by Defendants to DENNIS G. McDANIEL and Plaintiffs in the course of Defendants’ business or in a transaction in which the Defendants had an interest. Defendants failed to exercise reasonable care or competence in supplying DENNIS G. McDANIEL and Plaintiffs with false information that DENNIS G. McDANIEL and Plaintiffs justifiably relied and paid Defendants money and incurred expenses, so that DENNIS G. McDANIEL could attend ROYL to lose weight and alleviate his health and medical conditions. Defendants’ misrepresentations proximately caused pecuniary loss to DENNIS G. McDANIEL and Plaintiffs.
FOURTH CAUSE OF ACTION – COMMON LAW FRAUD
16. Plaintiffs incorporate by reference the averments contained in paragraphs 1-9 and adopt
them as if set out verbatim herein.
17. Defendants, jointly and severally committed fraud against DENNIS G. McDANIEL in that each made a representation of material fact, which was false, which the speaker either knew to be false or made recklessly without any regard for its truth and as a positive assertion, which the speaker intended DENNIS G. McDANIEL to act upon. Mr. McDANIEL acted in reliance on the representations and suffered bodily injuries resulting in his wrongful death for which Plaintiffs sue each Defendant for damages and punitive damages, as provided herein.
At all times material, Defendants represented that Defendants HAAG were medical doctors, that based on their medical training, natural hygiene training and skill, experience and education, Defendants HAAG were qualified to carefully and competently treat health and medical conditions from which DENNIS G. McDANIEL was suffering and to assist him to lose weight in a healthy and non-injurious manner. Defendant VETRANO claimed to be a chiropractor with special skills and knowledge in holistic medicine and alternative medical treatment of the health and conditions from which Mr. McDANIEL was suffering at all times material. The aforesaid representations were false, and/or each Defendant knew that the representations were false when made or that such representations were made recklessly without regard for the truth thereof and as a positive assertion. Each Defendant intended for Plaintiffs’ decedent and Plaintiffs to act upon such representations by paying Defendants money in order for Defendants to treat DENNIS G. McDANIEL to alleviate his unhealthy conditions for which he sought treatment. Mr. McDANIEL and Plaintiffs acted in reliance on the Defendants’ joint and several false representations by attending ROYL and by following the false and fraudulent medical advice/health care advice by Defendants, jointly and severally. DENNIS G. McDANIEL died as a proximate result of his reliance upon Defendants, joint and several false representations, resulting in compensatory damages suffered by Plaintiffs.
FIFTH CAUSE OF ACTION – MEDICAL MALPRACTICE
18. Plaintiffs incorporate by reference the averments contained in paragraphs 1-9 and adopt them as if set out verbatim herein.
19. This cause of action is brought in the alternative if the court concludes that any or all Defendants are subject to Chapter 74 of The Code. Despite the fact that Defendants were not licensed medical providers, of any type, Defendants, at all times material hereto, represented to DENNIS G. McDANIEL and Plaintiffs that they were “medical doctors,” that they each had special expertise in their respective areas of “medicine” or “health care” and that they were qualified to provide competent and careful medical or health care to DENNIS G. McDANIEL. Defendants were “practicing medicine,” as that term is defined in the Texas Occupation Code § 151.002. Defendants further represented to Mr. McDANIEL and Plaintiffs that each possessed and would exercise the requisite skill of medical doctors who specialize in treating the medical and/or health conditions for which Mr. McDANIEL was being treated at ROYL. The medical health care and treatment rendered by Defendants on the occasion in question was a departure from the standard of medical care which should have been rendered under the same or similar circumstances and constituted negligence and a proximate cause of DENNIS G. McDANIEL’s death’ and Plaintiffs’ damages. Defendants did not in good faith administer emergency medical care to DENNIS G. McDANIEL.
20. The Plaintiffs TERESA McDANIEL, INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF DENNIS G. McDANIEL, DECEASED, and his sons, SAMUEL McDANIEL and LOUIS McDANIEL are entitled to monetary compensation for damages in an amount within the jurisdictional limits of any Court, as set out further below, and which the jury deems just and fair, to include, but not limited to the following which have occurred in the past and, in all reasonable probability, will be sustained in the future by each plaintiff.
- The conscious physical pain and mental anguish of DENNIS G. McDANIEL, which was suffered by him from the moment he became ill up to the time of his untimely death;
- All reasonable and necessary expenses for any emergency care, medical treatment and hospital treatment, as well as funeral and burial expenses incurred on behalf and for the benefit of DENNIS G. McDANIEL.
- Mental anguish, including emotional pain, torment and suffering that the Plaintiffs have each separately experienced from the death of DENNIS G. McDANIEL.
- The loss of society and companionship representing the positive benefits flowing from the love, comfort, companionship and society that each of the individual Plaintiffs would have, with reasonable probability, experienced if DENNIS G. McDANIEL had lived.
- The pecuniary loss of care, maintenance, support, services, advise, counsel and reasonable contribution of pecuniary value that would, in reasonable probability, have been received by Plaintiff, TERESA McDANIEL, from the deceased DENNIS G. McDANIEL.
- The pecuniary loss of out-of-pocket expenses and/or cost associated with the “medical” treatment and services at ROYL Retreat that was incurred by DENNIS G. McDANIEL and Plaintiffs as a result of Defendants’ negligent misrepresentations.
21. These damages should be separately assessed by the jury with regard to each individual Plaintiff. A fair and impartial jury should listen to the evidence and award an amount for each element of damages that is just and fair and based upon the evidence, but should not award greater than $5,000,000.00 in actual damages for each individual Plaintiff.
22. Plaintiffs would additionally allege that this claim is brought pursuant to Chapter 71 et. seq., of the Texas Civil Practice and Remedies Code, to include, but not limited to, §§ 71.002, 71.004, and 71.021. Plaintiffs are entitled to all rights and protections of Chapter 71. Further, since the death was caused by the willful acts and/or omissions or gross neglect of the Defendants, exemplary damages are properly recoverable pursuant to § 71.009 of the Texas Civil Practice and Remedies Code. The exemplary damages sought are within the jurisdictional limits of this Court. Additionally, pursuant to § 71.004, this action is brought by and for the benefit of all wrongful death beneficiaries. This claim is filed individually and in representative capacity for the benefit of all wrongful death beneficiaries as authorized by the Civil Practices and Remedies Code.
23. All these damages to each Plaintiff, and other wrongful death beneficiaries, are within the jurisdictional limits of this Court, and Plaintiffs, TERESA McDANIEL, INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF DENNIS G. McDANIEL, DECEASED, and his sons, SAMUEL McDANIEL and LOUIS McDANIEL would ask that a fair reasonable and impartial jury assess the amount of damages in this case. The amount of actual damages· awarded should be subject to the evaluation of the evidence by a fair and impartial jury. Plaintiffs would further ask that a fair, reasonable and impartial jury assess the amount of exemplary damages in this case for those found to be grossly negligent or guilty of malice as defined under the law. The amount awarded against each Defendant that the jury believes was grossly negligent and/or malicious (and/or .consciously indifferent to the rights, safety or welfare of the Plaintiffs and/or Decedent), should be separately assessed.
24. Plaintiff TERESA McDANIEL, as Independent Executrix of the Estate of DENNIS G. McDANIEL, seeks exemplary damages against Defendants, as aforesaid.
25. Plaintiffs would further show that they are entitled to recover interest for all elements of damages recovered for which the law provides for prejudgment interest, beginning (1) on either the 180th day after the Defendants received written notice of the claim from the Plaintiffs, or (2) the day that suit is filed whichever is earlier, and ending on the day preceding the date judgment is rendered, at the prejudgment interest rate governed by V.T.C.A. Financial Code §304.1 02, et. seq. Plaintiffs are also entitled to post-judgment interest at the lawful rate,
26. Plaintiffs seek punitive damages from Defendants relating to Defendants’ gross negligence in an amount within the jurisdictional limits of the Court but not to exceed the statutory cap or multiplier of pecuniary and non pecuniary damages as authorized by law.
27. Plaintiffs pray that Defendants be duly cited to appear and answer herein, and upon a final hearing hereon, Plaintiffs have and recover judgment against Defendants, jointly and severally, for their damages as set forth herein, pre-judgment and post-judgment interest thereon at the legal rate, for exemplary damages as set forth herein, for costs of court, and for general relief.
ADAMI, GOLDMAN & SHUFFIELD, INC.
9311 San Pedro, Suite 900
San Antonio, Texas 78216
Telephone (210) 344-0500
MARTIN J. PHIPPS
State Bar No. 007
Federal Bar. No. 20104
CRAIG M. SAUCIER
State Bar No. 24041869
Federal Bar No. 578645
This page was posted on August 7, 2008..