Appellate Division, Second Department Upholds Jury Verdict in Medical Malpractice Action

Last week, the Second Department upheld a jury verdict in a Suffolk County medical malpractice action. The plaintiff sought and received from the Defendant doctor, among other things, counseling for mental health issues. During the course of the plaintiff seeing the defendant professionally, a personal sexual relationship developed. The consensual relationship lasted approximately nine months, until the parties concluded their affair.

The plaintiff acknowledged that at no time did the defendant physician say or imply that the sexual relationship was “part of the treatment.” Additionally, the defendant was not a mental health professional. The court stated that these facts were irrelevant, however. By acting in the capacity of a mental health professional, i.e. counseling the plaintiff and engaging in “talk therapy,” the defendant was in essence performing the function of a mental health professional. In such cases, the court found that a sexual relationship is likely to have a negative impact on the patient, regardless of whether or not such a relationship was coerced. The court found that despite the consensual nature of the relationship, its very existence was a departure from the recognized standard of care.

The court found that the jury award did not materially deviate from reasonable compensation. Originally, the jury awarded $150,000 for past mental distress, $50,000 for future mental distress, $134,000 for loss of past financial support, and $166,000 in punitive damages. The jury found the defendant 75% at fault. The Second Department court affirmed the jury award, with a bill of costs to the plaintiff.

Website Resource: Dupree v. Giugliano, 19557/04, NYLJ 1202514716761, at *1 (App. Div. 2nd, Decided September 13, 2011)

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