Dupree v. Giugliano

• Decision Date: 13 September 2011
• Citation: 87 A.D.3d 975,2011 N.Y. Slip Op. 06471,929 N.Y.S.2d 305
• Parties: Kristin Kahkonen DUPREE, respondent-appellant,v.James E. GIUGLIANO, appellant-respondent.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 975

929 N.Y.S.2d 305

2011 N.Y. Slip Op. 06471

Kristin Kahkonen DUPREE, respondent-appellant,

v.James E. GIUGLIANO, appellant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 13, 2011.

Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs of counsel), for appellant-respondent.Kenneth Cooperstein, Centerport, N.Y., for respondent-appellant.PETER B. SKELOS, J.P., JOSEPH COVELLO, RUTH C. BALKIN, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for medical malpractice, the defendant appeals from a judgment of the Supreme Court, Suffolk County (Rebolini, J.), entered August 18, 2009, which, upon a jury verdict on the issue of liability finding him 75% at fault and the plaintiff 25% at fault in the causation of the plaintiff's injuries, upon a jury verdict on the issue of damages finding that the plaintiff sustained damages in the sums of $150,000 for past mental distress, $50,000 for future mental distress, and $134,000 for loss of past financial support, and awarded the plaintiff the sum of $166,000 in punitive damages, and upon the denial of his motion pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability as contrary to the weight of the evidence and for a new trial or, in the alternative, to set aside the jury verdict on the issue of liability and for judgment as a matter of law, is in favor of the plaintiff and against him in the principal sum of $416,500, and the plaintiff cross-appeals from stated portions of the same judgment.

ORDERED that the judgment is affirmed, with one bill of costs to the plaintiff.

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence ( see Acosta v. City of New York, 84 A.D.3d 706, 921 N.Y.S.2d 644; Ferreira v. Wyckoff Hgts. Med. Ctr., 81 A.D.3d 587, 588, 915 N.Y.S.2d 631; see generally Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184).

In this case, the plaintiff sought to recover damages for medical malpractice and, thus, was required to prove that the defendant's deviation from good and accepted medical practice proximately caused her injuries ( see Alvarez v. Gerberg, 83 A.D.3d 974, 975, 922 N.Y.S.2d 183; Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176; Myers v. Ferrara, 56 A.D.3d 78, 83, 864 N.Y.S.2d 517). The credible evidence at trial established that the plaintiff sought and obtained treatment from the defendant for, among other things, mental health issues, and that, during and after the course of the treatment for mental health issues, the defendant and the plaintiff became involved with each other sexually for a period of approximately nine months. As our dissenting colleague points out, after the sexual relationship began, and concurrently with it, the plaintiff was also treated by a therapist whom the defendant recommended. The plaintiff disclosed to that therapist that she was having an affair, but she did not disclose that the affair was with the defendant since, as the plaintiff explained at trial, the therapist and the defendant were friends. The jury found that the defendant's conduct departed from good and accepted medical practice, and that this departure proximately caused the plaintiff to suffer emotional distress and economic loss. The jury found that the defendant was 75% at fault and the plaintiff was 25% at fault with respect to the plaintiff's injuries. The jury also awarded the plaintiff punitive damages in the sum of $166,000.

The plaintiff made a prima facie showing at trial that the defendant committed medical malpractice. Moreover, the jury's verdict on the issue of liability was supported by a fair interpretation of the evidence and, thus, was not contrary to the weight of the credible evidence ( see Capwell v. Muslim, 80 A.D.3d 722, 723, 915 N.Y.S.2d 617; Morales v. Interfaith Med. Ctr., 71 A.D.3d 648, 649, 896 N.Y.S.2d 394). The plaintiff's expert testified that because of the particularly sensitive nature of the relationship between a mental health provider and a patient, including the emotional dependence of the patient on the provider, a sexual relationship between the patient and the provider is very likely to harm the patient. Consequently, a sexual relationship between a mental health provider and a patient is a departure from the standard of care, whether it is characterized as part of the treatment or independent of it, and it is a departure even when it takes place after the treatment has ended ( see Noto v. St. Vincent's Hosp. & Med. Ctr. of N.Y., 142 Misc.2d 292, 295–296, 537 N.Y.S.2d 446, affd. 160 A.D.2d 656, 559 N.Y.S.2d 510; Weaver v. Union Carbide Corp., 180 W.Va. 556, 557–558, 378 S.E.2d 105, 106–107; Bunce v. Parkside Lodge of Columbus, 73 Ohio App.3d 253, 260, 596 N.E.2d 1106, 1110–1111; cf. Dillon v. Callaway, 609 N.E.2d 424, 427–428 [Ind.]; Mazza v. Huffaker, 61 N.C.App. 170, 174–177, 300 S.E.2d 833, 837–838; see generally Louisell & Williams, 3 Medical Malpractice, § 17A.11 [2011] ). Here, the plaintiff relied on the defendant for treatment, medication, and “talk therapy” relating to mental health issues arising, at least in part, out of problems she was having in her marriage. Her sexual relationship with the defendant began while that mental health treatment was continuing, and it clearly had an impact upon the plaintiff's level of trust and openness with her other therapist. That the plaintiff acknowledged that the sexual relationship between the defendant and her was not “part of the treatment” does not mitigate the breach of trust and, thus, does not mitigate the defendant's breach of duty. According to the expert testimony adduced by the plaintiff, it was entirely foreseeable that “eroticized transference”—in which the doctor becomes, for the patient, “a very sexually charged figure”—would occur as a result of the treatment. Rather than competently dealing with that transference, as the applicable standard of care requires, the defendant exploited it.

Relying primarily on Gross v. Kurk, 224 A.D.2d 582, 639 N.Y.S.2d 711, our dissenting colleague reiterates the generally unobjectionable proposition that a doctor's sexual relationship with his or her patient is not malpractice unless the sexual relationship was part of, or related to, treatment. The physician in that case, however, was an allergist, who limited his treatment of the plaintiff to twice-weekly allergy shots. A mental health provider's duty is different, and a sexual relationship between that provider and a patient violates the trust that lies at the heart of the relationship. Finally, it is irrelevant that the defendant was not actually a psychiatrist. When the defendant started providing “talk therapy,” he assumed the duty of care applicable to mental health providers ( see McCracken v. Walls–Kaufman, 717 A.2d 346, 352 [D.C.] ). For these reasons, we disagree with our dissenting colleague and conclude that the jury was entitled to find that the defendant committed medical malpractice by having a sexual relationship with the plaintiff, even where the plaintiff knew that the sexual relationship was not in furtherance or a part of the medical treatment.

The jury's determination to award punitive damages was justified. The evidence established that the defendant's departure from the standard of care predictably and inevitably damaged the plaintiff in those areas for which she sought treatment and was most vulnerable. Over the prolonged period during which the defendant departed from the applicable standard of care, the defendant's reprehensible conduct evinced a gross indifference to his patient's well-being ( see Randi A.J. v. Long Is. Surgi–Ctr., 46 A.D.3d 74, 85, 842 N.Y.S.2d 558; Brown v. LaFontaine–Rish Med. Assoc., 33 A.D.3d 470, 471, 822 N.Y.S.2d 527).

Contrary to the defendant's contention, the Supreme Court properly denied his midtrial application to preclude evidence of certain special damages, inasmuch as, among other things, that application was untimely ( see Martin v. We're Assoc., 127 A.D.2d 568, 569, 511 N.Y.S.2d 368; cf. Bass v. A & D Serv. Sta., 202 A.D.2d 464, 610 N.Y.S.2d 797).

The jury's award did not deviate materially from what would be reasonable compensation ( see CPLR 5501[c] ).

The parties' remaining contentions are without merit.

COVELLO, BALKIN, and AUSTIN, JJ., concur.SKELOS, J.P., dissents, and votes to reverse the judgment, grant those branches of the defendant's motion pursuant to CPLR 4404(a) which were to set aside the jury verdict on the issue of liability and for judgment as a matter of law, and dismiss the cause of action alleging medical malpractice, with the following memorandum:

In this action to recover damages for medical malpractice, a jury concluded that the defendant, a physician who was providing treatment to the plaintiff, committed malpractice by engaging in a consensual sexual relationship with the plaintiff, and that this malpractice proximately caused her emotional and economic damages. On appeal, the defendant argues, among other things, that he was entitled to judgment as a matter of law because the plaintiff's evidence failed to demonstrate that he had committed acts of medical malpractice. I agree, and, therefore, respectfully dissent.

According to the plaintiff's trial testimony, in January 2000, she sought treatment from the defendant, a family practitioner, for symptoms that he diagnosed as depression and panic attacks. The defendant prescribed an anti-depressant medication, and recommended that she seek counseling from a psychiatrist or psychologist, although the plaintiff did not initially do so. The plaintiff subsequently returned to the defendant's office approximately once or twice per month, at which times she discussed with the defendant her symptoms and the “stressors ... in her life,” and the defendant reassured her, giving her advice as to how...