Much has been written in recent weeks about the Court of Appeals’ decision in Dupree v. Giugliano, 2012 N.Y. LEXIS 3556, 4 (Nov. 30, 2012), which established that it is medical malpractice for a physician of any specialty to have sex with a patient to whom he has provided mental health treatment. (Previously, liability for malpractice in cases of physician-patient sexual relationships was limited to where the physician was a psychiatrist, or where the patient had been led to believe that the sexual contact was part of her treatment; otherwise, the courts left the task of punishing offending physicians to the New York Office of Professional Medical Conduct (OPMC).)1 The OPMC has repeatedly stated that the fact that psychiatrists and other therapy providers are affirmatively precluded, by rule, from having sex with their patients, does not establish an open season for other kinds of physicians. See Matter of D’Angelo v. State Bd. for Professional Med. Conduct, 66 AD3d 1154, 887 NYS2d 290 (2009); Matter of Barad v. State Bd. for Professional Med. Conduct, 282 AD2d 893, 724 NYS2d 87 (2001) (upholding revocation of non-psychiatric physician’s license for sexual misconduct.)
It should be noted, however, that (1) psychiatrists are by no means the only physicians who engage in such behavior, and (2) alternatives to a claim for malpractice, such as breach of fiduciary duty, sexual battery and infliction of emotional distress, are available in these types of cases, regardless of the physician’s practice area or whether the physician provided mental health treatment to the plaintiff. This article provides an overview of physician-patient sexual encounters and explores these alternative causes of action through the lens of the medical profession’s own ethics rules, which universally condemn physician-patient sexual relationships under any circumstances.
Patterns and Prohibitions
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