The Dental Lawyer | Malpractice: Dupreee v. Giugliano

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.