October 21, 2012

"Talk Therapy," Affairs, and Medical Malpractice

by Levin & Perconti

Medical doctors immediately jump to mind when most hear the phrase "medical malpractice." After all, culturally we are engrained to think of these types of cases involving surgeons, OBGYNs, ER doctors, nurses, and others working in hosptials and medical clinics. It is true that most medical malpractice cases do stem from mistakes made in these settings. However, the actual legal arena of medical malpractice also extends to other healthcare-related professionals, including dentists or even psychiatrists. The same basic principles are at play in all of these professionals negligence cases. Was there the appropriate legal relationship between the parties? Did the professional abide by appropriate standards of care? If there was a break from those standards, did it cause harm to the patient?

However, even though the basic legal outline in the same in all cases, that is not to say that unique factors often come into play. This is illustrated in a somewhat unique case reported recently in the SF Gate. According to the story, a medical malpractice lawsuit was filed against a family doctor who allegedly acted inappropriately in having an affair with a patient. That patient ended up divorced and suffering from various forms of distress. The patient eventually filed a suit seeking accountability from the doctor for the harm.

Obviously, this case seems bizarre on its face. The civil justice system does not allow plaintiffs to recover for all harm they experience in their lives that can in any way be "caused" by someone else. Individual choices do matter, and in almost all cases, having a marital affair,(even if it causes long-term mental and emotional harm) does not open the door to a civil lawsuit against the paramour.
This case might be unique, however, in that the suit claims that part of the family doctor's treatment specifically led to the underlying issue and subsequent harm. The plaintiff in this case first went to the doctor because she was suffering from various emotional ailments. The doctor eventually diagnosed this as depression and panic attacks. In addition, part of the treatment apparently involved "talk therapy." The story does not go into details about what they therapy entailed, but it likely invovled personal conversations and discussions between the doctor and patient regarding her troubles. The crux of the lawsuit was that the "talk therapy" section of the treatment was abused by the medical professional, as he took advantage of his role and the patient's vulnerabilities to push the affair.

The case eventually went to trial and a jury ruled in favor of the plaintiff. She was awarded over $400,000 for mental distress and emotional loss. The jury found that she herself was 25% responsible an the doctor was 75% at fault for the situation. The case was appealed. The first four person appellate panel sided with the jury in a 3-1 ruling, holding that the "talk therapy" section of the treatment may have specifically led to the damaging behavior. The one dissenter suggested that the affiar was purely consensual and could not result in legal liability. The matter has now been appealed to the state's highest court.

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