Can an adulterous affair with a patient be considered medical malpractice? New York’s highest court has ruled that it can.

The case involved a female patient who sought treatment for depression and anxiety from a licensed family physician in January 2000. The physician prescribed antidepressants, which he later switched in response to the patient’s concern that the medication was affecting her libido. The doctor recommended exercise and warm baths for stress, and referred the patient to a therapist.

A year and a half later, while the patient (who was married) was still being treated by the physician, they began an affair. The first instance occurred at a gym where the physician was showing the woman exercises to reduce stress and anxiety. Sexual encounters continued, several times a week, for the next nine months until both parties decided to end the relationship. The woman confessed about the affair to her husband, who subsequently divorced her.


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The patient sued the physician for medical malpractice, testifying that she felt the affair was wrong, but was unable to stop herself. Her attorney put an expert on the stand who testified that the patient’s romantic feelings towards her doctor were a result of “eroticized transference,” a phenomenon in which the patient experiences extreme attraction to a treating physician and that the patient is unable to resist. The woman alleged damages as a result of mental distress.

The judge instructed the jury that the patient could be found partially at fault for her own injuries—a legal theory called comparative fault. The jury ultimately found the patient 25% at fault for her injuries and the physician, 75% at fault. The jury awarded the patient $154,000 for past mental distress, $50,000 for future mental distress, $134,000 for past loss of income, and $166,000 for punitive damages. These awards were reduced by the 25% that the patient was at fault.

The case was appealed to the New York Court of Appeals, which held that the physician had a professional duty to manage the “transference” when he began treating the patient for mental health problems. The court held that “where defendant was prescribing a course of treatment for plaintiff’s mental health problems, including medication and counseling, a jury might reasonably conclude that the sexual relationship was substantially related to and, in fact, interfered with the treatment so as to constitute medical malpractice.”

However, the court also decided to vacate the award for punitive damages against the physician, holding that “the standard for an award of punitive damages is that a defendant manifest evil or malicious conduct beyond any breach of professional duty. There must be aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton,” the court said, citing a 1993 case.

“The circumstances here do not measure up to this standard: there is no evidence the doctor willfully caused plaintiff’s ‘transference’ or harm,” said the court. The other awards were upheld by the court.