An interesting malpractice case recently came out of New
York's highest court which has some bearing on dentists.
The case was Dupree v. Giugliano,
2012 NY Slip Op 08171 (2012). In this case a physician was treating a
patient for depression. Treatment included
referring the patient to a mental health professional, directing the patient to
perform certain exercises and take warm baths, and the prescribing of
anti-depressants. At some point
thereafter, while demonstrating the prescribed exercises at a local gym the doctor and patient
began as sexual relationship which lasted for close to 9 months. Upon confession the relationship to her
husband, the patient’s partner filed for divorce. The patient then sued the doctor on the
grounds of medical malpractice.
Setting aside the
ethical considerations, this fact scenario does not scream medical malpractice. Liability for negligence arises when an
individual has a duty to conform to a specific standard of care, there is a
breach in that duty of care, that breach actually and proximately causes injury
to another party, and that party is, in fact, damaged. Professional malpractice claims, such as
dental malpractice, add the additional element of requiring a lapse of
professional judgment or skill. As I’m sure defense counsel argued, this case
lacks the final element. There was
seemingly no lapse or professional judgment or skill. The doctor meeting the patient at a gym and sleeping
with her, when he knew her to be depressed and married reeks of a lapse of judgment,
but on the surface, I wouldn’t say that
it smells like a lapse of “professional
judgment.” This is not the case of a
doctor prescribing the wrong medicine or pulling the wrong tooth; then again, in real life, malpractice often doesn't look like that.
In deciding this was a case of medical malpractice the court
stated that the patient suffered from “eroticized transference, a medical phenomenon
in which the patient experience near psychotic attraction to a treating
physician, which the patient is powerless to resist” (internal quotations
excluded). The court claimed that it was
the doctor’s responsibility to manage this phenomon once he began treating the
patient. Further, the court relying on a
history of case law, determined that the challenged conducted merely had to
constitute medical treatment or bear a substantial relationship to medical
treatment to find medical malpractice. The court concluded that the
prescribing of medication and exercises as well as the referral to a mental health specialist was
sufficiently substantial treatment to justify the medical malpractice.
Regardless of whether or not you “buy” the court’s
reasoning, there are several important points to be made here: 1. Doctors
shouldn’t be sleeping with their patients, 2. Courts may stretch to find
medical malpractice, and 3. A court finding medical malpractice instead of mere
negligence means the malpractice carrier will be paying the damages, not the
doctor.
