| Dupree v Giugliano |
| 2011 NY Slip Op 06471 [87 AD3d 975] |
| September 13, 2011 |
| Appellate Division, Second Department |
| Kristin Kahkonen Dupree, Respondent-Appellant, v JamesE. Giugliano, Appellant-Respondent. |
—[*1] Kenneth Cooperstein, Centerport, N.Y., for respondent-appellant.
In an action to recover damages for medical malpractice, the defendant appeals from ajudgment of the Supreme Court, Suffolk County (Rebolini, J.), entered August 18, 2009, which,upon a jury verdict on the issue of liability finding him 75% at fault and the plaintiff 25% at faultin the causation of the plaintiff's injuries, upon a jury verdict on the issue of damages finding thatthe plaintiff sustained damages in the sums of $150,000 for past mental distress, $50,000 forfuture mental distress, and $134,000 for loss of past financial support, and awarded the plaintiffthe sum of $166,000 in punitive damages, and upon the denial of his motion pursuant to CPLR4404 (a) to set aside the verdict on the issue of liability as contrary to the weight of the evidenceand for a new trial or, in the alternative, to set aside the jury verdict on the issue of liability andfor judgment as a matter of law, is in favor of the plaintiff and against him in the principal sum of$416,500, and the plaintiff cross-appeals from stated portions of the same judgment.
Ordered that the judgment is affirmed, with one bill of costs to the plaintiff.
A jury verdict should not be set aside as contrary to the weight of the evidence unless the jurycould not have reached its verdict on any fair interpretation of the evidence (see Acosta v City of New York, 84AD3d 706 [2011]; Ferreira vWyckoff Hgts. Med. Ctr., 81 AD3d 587, 588 [2011]; see generally Nicastro vPark, 113 AD2d 129 [1985]).
In this case, the plaintiff sought to recover damages for medical malpractice and, thus, wasrequired to prove that the defendant's deviation from good and accepted medical practiceproximately caused her injuries (seeAlvarez v Gerberg, 83 AD3d 974, 975 [2011]; Stukas v Streiter, 83 AD3d 18, 23 [2011]; Myers v Ferrara, 56 AD3d 78, 83[2008]). The credible evidence at trial established that the plaintiff sought and obtained treatmentfrom the defendant for, among other things, mental health issues, and that, during and after thecourse of the treatment for mental health issues, the defendant and the plaintiff became involvedwith each other sexually for a period of approximately nine months. As our dissenting colleaguepoints out, after the sexual relationship began, and concurrently with it, the plaintiff was alsotreated by a therapist whom the defendant recommended. The plaintiff disclosed to that therapistthat she was having an affair, but she did not disclose that the affair was [*2]with the defendant since, as the plaintiff explained at trial, thetherapist and the defendant were friends. The jury found that the defendant's conduct departedfrom good and accepted medical practice, and that this departure proximately caused the plaintiffto suffer emotional distress and economic loss. The jury found that the defendant was 75% atfault and the plaintiff was 25% at fault with respect to the plaintiff's injuries. The jury alsoawarded the plaintiff punitive damages in the sum of $166,000.
The plaintiff made a prima facie showing at trial that the defendant committed medicalmalpractice. Moreover, the jury's verdict on the issue of liability was supported by a fairinterpretation of the evidence and, thus, was not contrary to the weight of the credible evidence(see Capwell v Muslim, 80 AD3d722, 723 [2011]; Morales vInterfaith Med. Ctr., 71 AD3d 648, 649 [2010]). The plaintiff's expert testified thatbecause of the particularly sensitive nature of the relationship between a mental health providerand a patient, including the emotional dependence of the patient on the provider, a sexualrelationship between the patient and the provider is very likely to harm the patient. Consequently,a sexual relationship between a mental health provider and a patient is a departure from thestandard of care, whether it is characterized as part of the treatment or independent of it, and it isa departure even when it takes place after the treatment has ended (see Noto v St. Vincent'sHosp. & Med. Ctr. of N.Y., 142 Misc 2d 292, 295-296 [1988], affd 160 AD2d 656[1990]; Weaver v Union Carbide Corp., 180 W Va 556, 557-558, 378 SE2d 105,106-107 [1989]; Bunce v Parkside Lodge of Columbus, 73 Ohio App 3d 253, 260, 596NE2d 1106, 1110-1111 [1991]; cf. Dillon v Callaway, 609 NE2d 424, 427-428 [Ind1993]; Mazza v Huffaker, 61 NC App 170, 174-177, 300 SE2d 833, 837-838 [1983];see generally Louisell & Williams, Medical Malpractice § 17A.11 [2011]). Here,the plaintiff relied on the defendant for treatment, medication, and "talk therapy" relating tomental health issues arising, at least in part, out of problems she was having in her marriage. Hersexual relationship with the defendant began while that mental health treatment was continuing,and it clearly had an impact upon the plaintiff's level of trust and openness with her othertherapist. That the plaintiff acknowledged that the sexual relationship between the defendant andher was not "part of the treatment" does not mitigate the breach of trust and, thus, does notmitigate the defendant's breach of duty. According to the expert testimony adduced by theplaintiff, it was entirely foreseeable that "eroticized transference"—in which the doctorbecomes, for the patient, "a very sexually charged figure"—would occur as a result of thetreatment. Rather than competently dealing with that transference, as the applicable standard ofcare requires, the defendant exploited it.
Relying primarily on Gross v Kurk (224 AD2d 582 [1996]), our dissenting colleaguereiterates the generally unobjectionable proposition that a doctor's sexual relationship with his orher patient is not malpractice unless the sexual relationship was part of, or related to, treatment.The physician in that case, however, was an allergist, who limited his treatment of the plaintiff totwice-weekly allergy shots. A mental health provider's duty is different, and a sexual relationshipbetween that provider and a patient violates the trust that lies at the heart of the relationship.Finally, it is irrelevant that the defendant was not actually a psychiatrist. When the defendantstarted providing "talk therapy," he assumed the duty of care applicable to mental healthproviders (see McCracken v Walls-Kaufman, 717 A2d 346, 352 [DC 1998]). For thesereasons, we disagree with our dissenting colleague and conclude that the jury was entitled to findthat the defendant committed medical malpractice by having a sexual relationship with theplaintiff, even where the plaintiff knew that the sexual relationship was not in furtherance or apart of the medical treatment.
The jury's determination to award punitive damages was justified. The evidence establishedthat the defendant's departure from the standard of care predictably and inevitably damaged theplaintiff in those areas for which she sought treatment and was most vulnerable. Over theprolonged period during which the defendant departed from the applicable standard of care, thedefendant's reprehensible conduct evinced a gross indifference to his patient's well-being (see Randi A. J. v Long Is. Surgi-Ctr.,46 AD3d 74, 85 [2007]; Brown vLaFontaine-Rish Med. Assoc., 33 AD3d 470, 471 [2006]).
Contrary to the defendant's contention, the Supreme Court properly denied his midtrialapplication to preclude evidence of certain special damages, inasmuch as, among other things,that application was untimely (see Martin v We're Assoc., 127 AD2d 568, 569 [1987];cf. Bass v A[*3]& D Serv. Sta., 202 AD2d 464 [1994]).
The jury's award did not deviate materially from what would be reasonable compensation(see CPLR 5501 [c]).
The parties' remaining contentions are without merit. Covello, Balkin, and Austin, JJ.,concur.
Skelos, J.P., dissents, and votes to reverse the judgment, grant those branches of thedefendant's motion pursuant to CPLR 4404 (a) which were to set aside the jury verdict on theissue of liability and for judgment as a matter of law, and dismiss the cause of action allegingmedical malpractice, with the following memorandum: In this action to recover damages formedical malpractice, a jury concluded that the defendant, a physician who was providingtreatment to the plaintiff, committed malpractice by engaging in a consensual sexual relationshipwith the plaintiff, and that this malpractice proximately caused her emotional and economicdamages. On appeal, the defendant argues, among other things, that he was entitled to judgmentas a matter of law because the plaintiff's evidence failed to demonstrate that he had committedacts of medical malpractice. I agree, and, therefore, respectfully dissent.
According to the plaintiff's trial testimony, in January 2000, she sought treatment from thedefendant, a family practitioner, for symptoms that he diagnosed as depression and panic attacks.The defendant prescribed an antidepressant medication, and recommended that she seekcounseling from a psychiatrist or psychologist, although the plaintiff did not initially do so. Theplaintiff subsequently returned to the defendant's office approximately once or twice per month,at which times she discussed with the defendant her symptoms and the "stressors. . . in her life," and the defendant reassured her, giving her advice as to how towork through her panic attacks. According to the plaintiff, the defendant described this treatmentas "talk therapy."
According to the plaintiff, in June 2001, while she was still the defendant's patient, thedefendant initiated a sexual encounter, which the plaintiff reciprocated. The plaintiff testified thatshe was "infatuated" with the defendant because he was "meeting emotional needs" that herhusband was not. In "the beginning of the summer that the affair started," the plaintiff also beganmeeting with a therapist whom the defendant had recommended. For the next nine months,according to the plaintiff, she and the defendant engaged in a consensual sexual relationship,while he continued to treat her. The plaintiff admitted at trial that she knew that the sexualrelationship was not "part of the treatment." In March 2002 the plaintiff and the defendantmutually decided to end the relationship, and the plaintiff told her husband of the affair, whichultimately led to a divorce.
The plaintiff subsequently commenced this action, in which she asserted that the defendantcommitted medical malpractice by engaging in a sexual relationship with her while she was hispatient. The jury agreed with the plaintiff, and awarded her damages for emotional injuries, aswell as for loss of financial support from her husband arising from the divorce. The plaintiff'sevidence, however, particularly in light of her own testimony that the consensual sexualrelationship was unrelated to any medical treatment she received from the defendant, failed, as amatter of law, to demonstrate that the defendant committed any acts of medical malpractice.
Conduct by a physician constitutes malpractice "only when [it] constitutes medical treatmentor bears a substantial relationship to the rendition of medical treatment" (Gross v Kurk,224 AD2d 582, 582 [1996]; see Scott v Uljanov, 74 NY2d 673 [1989]; Bleiler vBodnar, 65 NY2d 65, 72 [1985]; seealso Bazakos v Lewis, 12 NY3d 631, 634 [2009]). More specifically, conductconstitutes medical malpractice when "it can be characterized as a 'crucial element of diagnosisand treatment' and 'an integral part of the process of rendering medical treatment to [the plaintiff]'" (Spiegel v Goldfarb, 66 AD3d873, 874 [2009], quoting Bleiler v Bodnar, 65 NY2d at 72; see Weiner v LenoxHill Hosp., 88 NY2d 784, 788 [1996] [the "inquiry" in a medical malpractice action involves"an analysis of the medical treatment furnished"]). In accordance with these principles, thisCourt, in Gross, affirmed the dismissal of the plaintiff's complaint alleging medicalmalpractice because she "made no allegation that her social and sexual relationship with thedefendant constituted part of her treatment or was in any way related to her treatment" (Grossv Kurk, 224 AD2d at 582).
Even though the defendant in that case did not provide mental health services to the plaintiff,this Court's holding was the product of an application of the rule, stated in that case, that conductconstitutes malpractice "only when [it] constitutes medical treatment or bears a substantialrelationship to the rendition of medical treatment" (id.). The majority cites no authorityfor the proposition that conduct committed by physicians not providing mental health servicesconstitutes malpractice only when it constitutes or is substantially related to treatment, whereasphysicians providing mental health services can commit malpractice even when their conductdoes not constitute treatment or bear a substantial relationship to treatment.
As in Gross, here, the plaintiff's evidence failed to prove that the defendant breachedthe duty he owed to her by virtue of their physician-patient relationship, notwithstanding themoral impropriety of his conduct. The plaintiff admitted at trial that she knew that the sexualrelationship she had with the defendant was not part of her treatment (cf. Roy v Hartogs,85 Misc 2d 891, 892 [1976] ["plaintiff was induced to have sexual intercourse with the defendantas part of her prescribed therapy"]). Indeed, the plaintiff acknowledges on appeal that the sexualrelationship was "extraneous to treatment," but nonetheless contends that the sexual relationshipneed not be part of the treatment in order for her to prove that the defendant committed acts ofmedical malpractice. The case law she relies upon in connection with her contention that a sexualrelationship "extraneous to treatment" may constitute medical malpractice, however, does notsupport her contention. In none of the cited cases is it clear that the courts were expresslypresented with, and decided, that issue (see Marpe v Dolmetsch, 246 AD2d 723 [1998][granting the plaintiff's motion to amend the complaint to add a medical malpractice cause ofaction predicated upon sexual relations, without discussing whether the allegations wouldproperly constitute medical malpractice]; Coopersmith v Gold, 172 AD2d 982 [1991][concluding that the defendant was equitably estopped from asserting a statute of limitationsdefense to the plaintiff's malpractice claim predicated upon sexual relations with the defendantphysician]; Noto v St. Vincent's Hosp. & Med. Ctr. of N.Y., 160 AD2d 656, 656 [1990][holding that "there (was) no cause of action for lack of informed consent, because the allegedsexual liaison was not a treatment or diagnosis"; no discussion of medical malpractice cause ofaction, which was left intact by Supreme Court]).
Instead of arguing that the sexual relationship constituted or bore a substantial relationship tomedical treatment, the plaintiff here argues, and the majority agrees, that "where the sexualrelationship actually interferes with the treatment and causes harm . . . then there isa civil remedy in the form of an action [to recover damages] for medical malpractice." It cannotreasonably be maintained, however, that any conduct committed by a doctor that interferes with apatient's treatment, no matter how unrelated to treatment or the practice of medicine, constitutes adeparture from accepted medical practice (see generally Gross v Kurk, 224 AD2d 582[1996]; Scott v Uljanov, 74 NY2d 673 [1989]; Bleiler v Bodnar, 65 NY2d at 72).For example, a physician's act of sexually assaulting a patient would undoubtedly harm thepatient, including his or her mental health, and would likely interfere with any mental healthtreatment being provided. However, this Court has held that such conduct does not constitutemedical malpractice because the injuries "stem[ ] from the alleged intentional assault by thedefendant, not the medical services rendered" (Fragosa v Haider, 17 AD3d 526, 527 [2005]). Similarly, here, theplaintiff's alleged injuries stem from the defendant's intentional conduct of engaging in aconsensual sexual relationship with her, extraneous to treatment.
Moreover, the mere fact that the plaintiff and the defendant had a physician-patientrelationship does not render every act committed by the defendant toward the plaintiff one ofmedical malpractice (cf. Weiner v Lenox Hill Hosp., 88 NY2d at 787-788 [although "ahospital in a general sense is always furnishing medical care to patients . . . notevery act of negligence toward a patient would be medical malpractice" (internal quotation marksomitted)]; Elashker v Medical Liab.Mut. Ins. Co., 46 AD3d 966, 967 [2007] [a thyroid examination performed on a nurseby a physician "merely [*4]provided the occasion for the alleged(sexual) assault and did not convert (physician's) acts into professional malpractice"]).
By engaging in sexual relations with the plaintiff, the defendant may have committedprofessional misconduct warranting disciplinary penalties, such as revocation of his license(see Education Law § 6530 [20]; Matter of D'Angelo v State Bd. for Professional Med. Conduct, 66AD3d 1154 [2009]; Matter of Barad v State Bd. for Professional Med. Conduct, 282AD2d 893 [2001]). Further, the defendant undoubtedly acted unethically from a moralperspective, particularly due to the plaintiff's vulnerable emotional state. However, not allimmoral conduct is actionable in tort. Nor does a violation of professional ethical guidelines, ifsuch were the case here, by itself necessarily support a civil cause of action to recover damagesfor malpractice (cf. Nesenoff vDinerstein & Lesser, 5 AD3d 746, 748 [2004]; Schwartz v Olshan Grundman Frome& Rosenzweig, 302 AD2d 193 [2003]; Mills v Pappas, 174 AD2d 780, 782 [1991];Brown v Samalin & Bock, 155 AD2d 407 [1989]). The evidence here demonstrated thatthe sexual relations between the defendant and the plaintiff were not an " 'element of diagnosisand treatment' " or " 'an integral part of the process of rendering medical treatment to [theplaintiff]' " (Spiegel v Goldfarb, 66 AD3d at 874, quoting Bleiler v Bodnar, 65NY2d at 72) but, rather, were, as the plaintiff concedes, "extraneous to treatment." Accordingly,the plaintiff's cause of action to recover damages for medical malpractice fails as a matter of law.
While the majority relies, in part, upon its conclusion that the sexual relationship "clearly hadan impact upon the plaintiff's level of trust and openness with her other therapist," the majority'sjudgment about the plaintiff's "level of trust and openness with her other therapist" is notsupported by expert testimony or other evidence in the record. In any event, even if the sexualrelationship had such an effect, that does not create a substantial nexus between the sexualrelationship and the treatment rendered by the defendant.
The majority also relies, in part, upon the testimony of the plaintiff's expert regarding the"transference phenomenon." The plaintiff's expert testified that the plaintiff experienced a"ubiquitous phenomenon" known as "eroticized transference," whereby the patient"re-experiences" feelings he or she had for a parent during "early life" and "puts them on thepsychiatrist." The expert opined that the plaintiff's sexual feelings toward the defendant, and herfailure to control these impulses, were related to this "phenomenon." The plaintiff, however,invokes this testimony only in arguing that the jury erred in apportioning any fault to her for thedamages she sustained as a result of her sexual relationship with the defendant, and not tosupport her theory of how the defendant committed malpractice. Despite the expert's testimonyregarding the "transference phenomenon," he made clear, as does the plaintiff on appeal, that thealleged "departure" from good and accepted medical practice was "sex between [the defendant]and [the plaintiff]" (see Physicians'Reciprocal Insurers v Giugliano, 37 AD3d 442, 444 [2007] ["Dupree's amendedcomplaint alleged solely that Dr. Giugliano acted negligently by engaging in sexual contact withher, and did not indicate any misconduct by Dr. Giugliano beyond this alleged sexual contact"]).As previously discussed, the defendant's act of engaging in sexual relations with the plaintiff,even if her desires were the product of the "transference phenomenon," did not contribute to theprovision of, or the failure to provide, medical treatment and, thus, while unethical, was not anact of medical malpractice (see Gross v Kurk, 224 AD2d at 582; cf. Fragosa v Haider, 17 AD3d526 [2005]; Karczewski v Sharpe, 248 AD2d 679, 680 [1998]).
Accordingly, I would reverse the judgment, grant those branches of the defendant's motionpursuant to CPLR 4404 (a) which were to set aside the jury's verdict in the plaintiff's favor on theissue of liability and for judgment as a matter of law, and dismiss the cause of action to recoverdamages for medical malpractice.