 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Korper v. Weinstein2/24/2003
Middlesex.
October 17, 2002
Medical Malpractice, Standard of care. Doctor, Doctor-patient relationship. Emotional Distress. Intentional Conduct. Consumer Protection Act, Unfair or deceptive act.
The plaintiff and the defendant engaged in a two-year consensual sexual affair, which was broken off by the defendant. During the course of the relationship and subsequently, the plaintiff claims, she suffered emotionally as a result of the trust and confidence she placed in the defendant. Her civil action for damages was dismissed on summary judgment. She appeals, claiming, in substance, that one additional fact distinguishes her case from that of all other injured lovers: they met when he was her physician. This additional fact does not save her claim for emotional distress damages.
Background.
At age forty-seven, the plaintiff, while a Ph.D. candidate at Harvard University, initially consulted the defendant, then chief of surgery at Harvard's University Health Services (UHS), on October 14, 1994, for investigation of a breast lump. The defendant performed a biopsy on October 27, 1994, and no malignancy was found. Additional visits followed through mid-November, culminating with the defendant removing the sutures for the one-inch biopsy incision and securing the wound with bandages. During the latter visits, the plaintiff and the defendant discovered mutual interests in the area of conflict resolution, the plaintiff's field of study. The plaintiff asked to interview the defendant and they arranged to meet for lunch.
On November 30, 1994, the plaintiff met the defendant at his office and they ate lunch at a nearby restaurant. They arranged another luncheon meeting for December 3, 1994, to pursue their mutual interest further. On the appointed date, the luncheon meeting was delayed by several hours because the defendant accepted the plaintiff's invitation to her apartment, where they engaged in sexual relations. This event marked the beginning of their sexual relationship, which continued for more than two years.
The defendant ended his treatment of the plaintiff at UHS once their sexual relationship began. At no time did the defendant purport to provide mental health counseling, treatment, or services to the plaintiff. Their sexual encounters were not part of any treatment or therapy, and neither party claimed or understood them to be so. In 1997, the defendant ended the relationship.
Claims.
The plaintiff brought her claims in several counts: medical malpractice, breach of fiduciary duty, intentional infliction of emotional distress, and unfair business practices under G.L. c.93A. We consider them in turn.
1. Medical malpractice.
It is settled that consensual sexual conduct between a medical practitioner and a patient does not constitute medical malpractice. Roe v. Federal Ins. Co., 412 Mass. 43, 49-51 (1992) (sexual contact by a dentist during treatment, whether consensual or not, is not the rendering of professional services so as to be covered by malpractice insurance). There are two exceptions to this rule: mishandling of the "transference phenomenon" by a psychiatrist with a patient; and sexual conduct purporting to be medical treatment. See ibid.; Palermo v. Brennan, 41 Mass. App. Ct. 503, 509 n.10 (1996). See also Atienza v. Taub, 194 Cal. App. 3d 388, 393-394 (1987); Mindt v. Winchester, 151 Ore. App. 340, 343-345 (1997). The plaintiff argues that a kind of transference phenomenon occurs in the ordinary patient-physician relationship by virtue of the relationship. This view has been identified and rejected. Roe v. Federal Ins. Co., 412 Mass. at 50-51. The plaintif
Page 1 2 3 Massachusetts Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|