Atienza v. Taub

• Decision Date: 24 August 1987
• Citation: 194 Cal.App.3d 388,239 Cal.Rptr. 454
• Court: California Court of Appeals Court of Appeals
• Parties: Maria ATIENZA, Plaintiff and Appellant, v. Morris TAUB, M.D., Defendant and Respondent. B023171.

Page 454

239 Cal.Rptr. 454

194 Cal.App.3d 388

Maria ATIENZA, Plaintiff and Appellant, v. Morris TAUB, M.D., Defendant and Respondent.

B023171.

Court of Appeal, Second District, Division 4, California.

Aug. 24, 1987.

Review Denied Nov. 12, 1987.

Alan G. Barry, Torrance, for plaintiff and appellant.

La Follette, Johnson, De Haas & Fesler, Alfred W. Gerisch, Jr., Melinda W. Ebelhar, Los Angeles, Horvitz, Levy & Amerian, Ellis J. Horvitz and Stuart B. Esner, Encino, for defendant and respondent.

WOODS, Presiding Justice.

This is an appeal from an order of dismissal of an action for professional negligence and intentional infliction of emotional distress brought by Maria Atienza (appellant) against Morris Taub, M.D., (respondent) following the sustaining of a demurrer without leave to amend. We affirm.

The first amended complaint sets forth the following factual allegations which, for the purposes of review, we accept as true:

Respondent is a licensed physician with a medical practice. On October 20, 1983, appellant went to respondent for treatment of a "phlebitic [sic] condition" allegedly sustained as the result of an industrial injury. Appellant's injury also caused her emotional problems but she does not allege that she sought treatment for those problems from respondent.

During the course of treatment, respondent "seduced [appellant] into having sexual relations and an affair with her which lasted until October 31, 1984...." Both his treatment of appellant for her medical condition and his affair with her ended on October 31, 1984.

On August 16, 1985, appellant filed a complaint for personal injuries alleging two causes of action, professional negligence and willful misconduct. On October 21, 1985, respondent demurred to the complaint. Appellant opposed the demurrer and a hearing was set on November 21, 1985. The record, however, is silent as to whether that hearing was actually held.

The record shows that on December 9, 1985, appellant filed her first amended complaint, alleging professional negligence and intentional infliction of emotional distress. Under professional negligence, appellant alleged that by initiating a sexual relationship with her while she was under his care respondent "failed to adequately care for and treat the [appellant] by virtue of abusing her psychologically while purportedly treating her physically." She also alleged that his conduct violated a fiduciary duty owed to her by respondent; violated provisions of the Hippocratic oath; and violated the provisions of Business and Professions Code section 726. ¹

In her second cause of action, for intentional infliction of emotional distress, appellant alleged respondent's conduct "demonstrated [his] conscious and reckless disregard for the risk to the health and well-being of" appellant, entitling her to punitive damages.

On January 6, 1986, respondent demurred to the first amended complaint. On March 4, a hearing was held and the demurrer was sustained as to appellant's cause of action for professional negligence, but overruled as to her cause of action for intentional infliction of emotional distress. Thereafter, respondent sought a writ of mandate in Division Five of this court to vacate the trial court's overruling of his demurrer to the second cause of action. On April 28, 1986, an alternative writ was issued and, on June 4, 1986, the trial court vacated its earlier order and sustained the demurrer to the second cause of action without leave to amend.

On July 8, 1986, an order of dismissal was filed applicable to the entire complaint. This appeal ensued.

I

This appeal presents a question of first impression: can allegations that a physician initiated a sexual relationship with his patient during the time he was treating her for a physical disorder state a cause of action for professional negligence medical malpractice? In our view, the answer turns on whether the sexual relationship was initiated by the physician under the guise of treatment of the patient. In the case at bar, we conclude that it was not.

The duty of care owed by a physician to a patient arises in the context of the physician's "effort to accomplish the purpose for which the physician is employed." (BAJI No. 6.00 (7th ed. 1986).) In achieving that purpose the physician must " 'have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and ... he [must] exercise ordinary care in applying such learning and skill to the treatment of his patient. [Citations.]' " (Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 279, 100 Cal.Rptr. 82, quoting Lawless v. Calaway (1944) 24 Cal.2d 81, 86, 147 P.2d 604.)

In Business and Professions Code section 6146, the Legislature has defined professional negligence in the context of health care providers as "a negligent act or omission to act ... in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that the services are within the scope of services for which the provider is licensed...." (Bus. & Prof.Code, § 6146, subd. (c)(3).) Accordingly, an action for the professional negligence of a physician arises out of the breach of the duty of care owed to the patient by the physician within the scope of the patient-physician relationship.

Appellant maintains that respondent's initiation of a sexual relationship with her breached the duty of care which he owed her as a physician. In support of this contention she cites a number of authorities. Our examination of those authorities leads us to conclude that, while a physician's sexual misconduct can be the basis of a malpractice action, these authorities are distinguishable from the instant case because the sexual relationship in those cases was initiated by the physician purportedly in furtherance of his treatment of the patient. This was not the situation in the case before us.

In Waters v. Bourhis (1985) 40 Cal.3d 424, 220 Cal.Rptr. 666, 709 P.2d 469; the issue before the Supreme Court was whether the attorney fee limitations in medical malpractice actions set forth in section 6146 of the Business and Professions Code applied to an action, settled prior to trial, that pled both professional negligence and intentional or reckless infliction of emotional distress. The basis of the underlying action were allegations that the physician, a psychiatrist, "induced [the patient] to participate in sexual conduct by suggesting that it was part of the therapy designed to alleviate her sexual inhibitions, and ... by threatening to have her institutionalized if she did not cooperate." (Id. at p. 428, 220 Cal.Rptr. 666, 709 P.2d 469.) Rejecting the attorney-defendant's argument that recovery in the underlying action was not based on medical malpractice, the court observed: "In addition to the allegations of intentional misconduct, the complaint alleged that the psychiatrist's course of conduct constituted negligent treatment, and many out-of-state decisions have found that similar instances of sexual conduct between psychiatrist and patient may give rise to a medical malpractice action on just such a basis. [Citations.].... [p] ... In such a case, the psychiatrist has breached both the duty imposed on everyone to refrain from intentionally injuring another and the special duty that a psychiatrist owes to his patient to use due care for the patient's health in the conduct of the therapist-patient relationship." (Waters v. Bourhis, supra, 40 Cal.3d at pp. 433, 434, 220 Cal.Rptr. 666, 709 P.2d 469; fns. omitted.)

In examining out-of-state authorities, we find that allegations of a physician's sexual misconduct have provided a basis for a malpractice action only where the patient has alleged that the physician induced sexual relations as part of the therapy. (Zipkin v. Freeman (Mo.1968) 436 S.W.2d 753, 755 [psychiatrist "negligently advised plaintiff she needed further treatment by way of personal and social contacts with him even though such a relationship went beyond accepted psychiatric standards."]; Roy v. Hartogs (1976) 85 Misc.2d 891, 381 N.Y.S.2d 587, 588 [plaintiff "induced to have sexual intercourse with the defendant as part of her prescribed [psychiatric] therapy."]; Cotton v. Kambly (1980) 101 Mich. App. 537, 300 N.W.2d 627, 628 ["Plaintiff alleges that defendant induced her to engage in sexual relations with...