Sleeping with the Enemy: When a Consensual Relationship = Medical Malpractice

New York’s high court recently concluded that a consensual relationship between a patient and her family doctor constituted medical malpractice. Issue: Whether a consensual sexual relationship between a married patient and her physician is grounds for a medical malpractice claim. Lesson: When possible, avoid sleeping with your clients.

The plaintiff, Kristen Dupree, sought treatment for gastrointestinal pain, depression, and stress from the defendant, Dr. James Giugliano, a licensed family physician with a concentration in osteopathic medicine. At the conclusion of the treatment, the parties began an adulterous affair. Nine months later, when the plaintiff disclosed the affair to her husband, he filed for divorce. The divorce proceedings were contentious and lasted for five years before the Duprees reached a resolution.

Following the divorce decree, the plaintiff sued Dr. Giugliano for medical malpractice, Dupree v. Giugliano, 2012 N.Y. LEXIS 3556 (Nov. 29, 2012). During trial, the plaintiff’s expert testified that Dupree suffered from “eroticized transference,” a medical phenomenon that causes a patient to experience extreme attraction to a treating physician, an attraction that the patient is powerless to resist. Dupree claimed she knew the affair was wrong, but was unable to control herself. The jury found that Giugliano committed malpractice but that Dupree was 25 percent at fault. The jury also awarded punitive damages to the plaintiff.

On appeal, New York’s highest court held that the sexual relationship did constitute malpractice but that punitive damages were not warranted. The court bunked the trend and extended malpractice liability for a doctor-patient affair – traditionally only imposed against therapists, psychologists, and the like – to Dr. Giugliano, a family physician with no mental health specialty. Central to the court’s finding was that Dr. Giugliano while initially treating the plaintiff’s gastrointestinal condition also provided the plaintiff with mental health treatment for the plaintiff’s claimed depression and anxiety.

This decision sends a cautionary note that professionals are not immune from liability even if engaging in a consensual relationship. The lesson is to think twice before crossing the line from patient to bedmate because the professional may be sleeping with the enemy.

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