October 22, 2012

When a doctor has an affair with his patient, is it considered to be medical malpractice? That is the question that New York’s highest appellate court is being asked to decide in an appeal of a $416,500 medical malpractice verdict against an osteopathic physician. The parties’ appellate attorneys argued the appeal before the New York Court of Appeals on October 17, 2012. An intermediate appellate court had upheld the New York medical malpractice verdict in a three-to-one decision.

The married patient had gone to the osteopathic physician for treatment of her gastrointestinal condition after which she allegedly seduced the doctor. The affair lasted nine months before it ended in 2002, after which the patient divorced from her husband. The patient filed a medical malpractice claim against her former physician/lover, claiming that he had committed medical malpractice. The medical malpractice jury determined that the osteopathic doctor had committed medical malpractice and was 75% at fault, awarding his former patient damages for her mental anguish and economic losses along with punitive damages in the amount of $166,000.

During the oral argument before the New York Court of Appeals, the doctor’s lawyer argued that the doctor’s actions may have been unethical and a violation of the doctor’s professional obligations but that it was not medical malpractice. The patient’s appellate lawyer argued before the New York Court of Appeals that the doctor had treated his client for 18 months before the affair began and that the doctor provided his client with advice and medications for depression and panic attacks, claiming a breach of trust by the doctor. He claimed that his client was particularly vulnerable and that the doctor took advantage of her vulnerability. He acknowledged that his client had pursued the doctor outside of his office, including joining the doctor’s health club, but stressed that the relationship started with flirting in his office.

A decision by the New York Court of Appeals is anticipated in November.


The issue of a medical provider starting and maintaining a sexual relationship with a patient is not a new or recent problem. The ethical mandates of the medical profession admonish against such relationships and consider them to be ethical breaches by medical professionals. The issue in the New York case is whether such an ethical breach (and many would say a moral breach) is within the context of providing medical care and therefore is a breach of the professional standard of care relevant to the particular medical care provider.

Perhaps it would be a more egregious example of a possible breach of the standard of care for a psychiatrist or psychologist to begin a sexual relationship with a patient that he/she is presently treating for emotional or psychological issues, such as a patient going through a divorce or a patient dealing with issues involving sexual abuse. However, the issue becomes more murky if the sexual relationship begins after the doctor-patient relationship has terminated, which participant instigates the sexual relationship, the relative power of the participants in the relationship, and the condition(s) for which the doctor was treating the patient.

Not all such sexual relationships may be the basis for a legal claim in all U.S. states. Nonetheless, if you, a family member, or a close friend had a sexual relationship with a medical provider that began after the medical provider-patient relationship began, you or the other person may have a claim for injuries or losses that resulted from the relationship. The advice of a local medical malpractice attorney may help you determine if you may sue for your harms.

Click here to visit our website or telephone us on our toll-free line (800-295-3959) to be connected with medical malpractice lawyers in your state who may agree to investigate your possible medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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