Roy v. Hartogs

• Decision Date: 30 January 1976
• Citation: 381 N.Y.S.2d 587,85 Misc.2d 891
• Parties: Julie ROY, Plaintiff-Respondent, v. Renatus HARTOGS, M.D., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Term

Page 587

381 N.Y.S.2d 587

85 Misc.2d 891

Julie ROY, Plaintiff-Respondent, v. Renatus HARTOGS, M.D., Defendant-Appellant.

Supreme Court, Appellate Term, First Department.

Jan. 30, 1976.

Cohen & Bauman, New York City (Jesse Climenko and James H. Schuyler, New York City, of counsel), for appellant.

Lans, Feinberg & Cohen, New York City (Robert Stephan Cohen and Deborah E. Lans, New York City, of counsel), for respondent.

Before MARKOWITZ, P.J., and TIERNEY and RICCOBONO, JJ.

MEMORANDUM DECISION.

A complaint should not be dismissed on the opening statement of counsel unless, accepting as true all facts stated in the opening and resolving in plaintiff's favor all material facts in issue, plaintiff nevertheless is precluded from recovery as a matter of law (Rivera v. Board of Education, 11 A.D.2d 7, 8, 9, 201 N.Y.S.2d 372, 373). Counsel asserted in the opening statement that the defendant, a psychiatrist, had treated the plaintiff, as his patient, during the period March, 1969 through September, 1970. It was further averred that, during the last thirteen months of her treatment, plaintiff was induced to have sexual intercourse with the defendant as part of her prescribed therapy. As a result of this improper treatment, counsel alleged that the plaintiff was so emotionally and mentally injured that she was required to seek hospitalization on two occasions during 1971.

The right of action to recover a sum of money for seduction has been abolished by Article 8 of the Civil Rights Law and the predecessor legislation found in Article 2--A of the Civil Practice Act. These statutes were passed, as a matter of public policy, so that marriages should not be entered into because of the threat or danger of an action to recover money damages and the embarrassment and humiliation growing out of such action (Fearon v. Treanor, 272 N.Y. 268, 274, 5 N.E.2d 815, 817). However, this legislation did not abolish all causes of action wherein the act of sexual intercourse was either an 'incident of' or 'contributed to' the ultimate harm or wrong (Tuck v. Tuck, 14 N.Y.2d 341, 251 N.Y.S.2d 653, 200 N.E.2d 554 (1964)). In this proceeding, the injury to the plaintiff was not merely caused by the consummation of acts of sexual intercour with the defendant. Harm was also caused by the defendant's failure to treat the plaintiff with professionally acceptable procedures (cf. Zipkin v. Freeman, 436 S.W.2d 753, 761, 762 (Mo.1969); cf. Anclote Manor Foundation v. Wilkinson, 263 So.2d 256, 257 (Fla.App.1972)). By alleging that his client's mental and emotional status was adversely affected by this deceptive and damaging treatment, plaintiff's counsel asserted a viable cause of action for malpractice in his opening statement (Tuck v. Tuck, supra, 14 N.Y.2d at 345, 251 N.Y.S.2d at 656, 200 N.E.2d at 556).

Generally, evidence of other acts or transactions, even of a similar nature, are not admissible where such acts can only be deemed relevant through the inference that the party would follow the same course in the transaction in issue (21 N.Y.Jur., Evidence § 181). However, the physical condition of the defendant in this appeal became relevant when he stated that he did not have sexual intercourse after 1965 because of a hydrocele (21 N.Y.Jur., Evidence § 187; 29 Am.Jur.2d, Evidence § 439). At that juncture, the testimony of witness Stern was correctly received in rebuttal on defendant's physical condition in 1969 and 1970 when he was treating the plaintiff. Because witnesses Cuttler and Sherwood were unaware of defendant's physical capability during the period in issue, their testimony was properly stricken by the court below. In the context of this protracted trial, the jurors were not so unduly influenced by this stricken testimony as to warrant a reversal on this ground (Mercadante v. Barry Transportation Co., 23 A.D.2d 653, 257 N.Y.S.2d 378 (1st Dept.), affd. 17 N.Y.2d 462, 266 N.Y.S.2d 815, 213 N.E.2d 894).

Since the brief and unsolicited meeting between juror Smith and Witness Sherwood occurred after the rendition of the verdict on liability, the defendant cannot meritoriously contend that the resolution of the liability issue was tainted by juror misconduct. The propriety of the transfer from Supreme Court to Civil Court (CPLR § 325(d)) was not raised below and will not be considered, for the first time, upon appeal.

The award of $50,000 in compensatory damages for defendant's aggravation of plaintiff's pre-existing mental disorders, is, however, in our opinion excessive. Plaintiff's condition was of long standing, and began years before she became defendant's patient. There is no evidence to support a permanent worsening of the condition by defendant's acts; nor is there proof demonstrating a permanent impairment of her ability to work in a position comparable to that she had before or during the period she was defendant's patient. Given the fact that she may recover only for the aggravation of her condition by defendant (Schneider v. New York Telephone Co., 249 App.Div. 400, 292 N.Y.S. 399), we conclude that an award of more than $25,000 would be excessive.

The jury's finding, implicit in its award of punitive damages, that the defendant was actuated by evil or malicious intentions when the parties had sexual intercourse was against the predominating weight of the credible evidence. Viewing all the facts and circumstances incident to the occurrences most favorably to the plaintiff as disclosed in this record (Sanders v. Rolnick, 188 Misc. 627, 67 N.Y.S.2d 652, affd. 272 App.Div. 803, 71 N.Y.S.2d 896), the weight of the evidence did not justify the jury's finding that defendant's conduct, while inexcusable, was so wanton or reckless as to permit an award for punitive damages (Hedrick v. Jebiley, Sup., 198 N.Y.S.2d 346; 14 N.Y.Jur., Damages, §§ 177, 179; Walker v. Sheldon, 10 N.Y.2d 401, 223 N.Y.S.2d 488, 179 N.E.2d 497; cf. Conners v. Walsh, 131 N.Y. 590, 30 N.E. 59; Da Costa v. Technico Construction Corp., 74 Misc.2d 583, 344 N.Y.S.2d 967, affd. 78 Misc.2d 1100, 360 N.Y.S.2d 846 (App.T.1st), lv. to app. den. N.Y.L.J., December 31, 1974). The other points of error raised in defendant's brief are clearly without merit and need not be explored in this decision.

Judgment, entered July 29, 1975 (Myers, J. and jury), reversed and new trial ordered limited to the issue of compensatory damages, with $30 costs to appellant to abide the event that plaintiff recovers less than $25,000 in compensatory damages, unless respondent within ten days after service of a copy of the order entered hereon with notice of entry, stipulates to reduce the recovery to $25,000, in which event judgment modified accordingly and as modified, affirmed without costs.

MARKOWITZ, Presiding Justice (concurring):

I concur in the Memorandum Decision but would like to add the following observations.

The subject matter of this case was highly sensational forcing the participants to operate in a charged atmosphere rather than the calm almost cloistered climate of the routine civil courtroom. However, since this State has not closed the door on all actions merely because sexual relations are part of the core facts, and does permit civil prosecutions where the wrong alleged is grounded on conventional tort (Tuck v. Tuck, 14 N.Y.2d 341, 251 N.Y.S.2d 653, 200 N.E.2d 554) there is no question that the facts adduced in this record were properly presented to the jury as a possible basis for malpractice which had a causal connection to plaintiff's subsequent psychotic episodes.

While cultists expound theories of the beneficial effects of sexual psychotherapy, the fact remains that all eminent experts in the psychiatric field including the American Psychiatric Association abjure sexual contact between patient and therapist as harmful to the patient and deviant from accepted standards of treatment of the mentally disturbed.

Dr. Ernest Jones, in his encyclopedic treatment of 'The Life and Work of Sigmund Freud' (New York, Basic Books, Inc. 1953) sets forth (Vol. 3, p. 163) a letter written by Freud to a colleague which is relevant to the discussion here.

It reads in pertinent part as follows:

'13. XII. 1931

'Lieber Freund:

'* * * You have not made a secret of the fact that you kiss your patients and let them kiss you; * * *

'Now I am assuredly not one of those who from prudishness or from consideration of bourgeois convention would condemn little erotic gratifications of this kind. * * * But that does not alter the facts * * * that with us a kiss signifies a certain erotic intimacy....