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Korper v. Weinstein2/24/2003
ough the physician-patient relationship is one of many "familiar and well recognized forms of fiduciary relationships," Warsofsky v. Sherman, 326 Mass. at 292, the scope of the fiduciary duty is defined by the incidents and undertakings of the defendant as a physician. See Fowles v. Lingos, 30 Mass. App. Ct. 435, 441 (1991). The conduct here complained of was outside that scope.
There appears no question that the trust and confidence that the plaintiff put in the defendant in this case went beyond that related to the professional services he rendered. Any trust and confidence she placed in the defendant as a person, however, even augmented by circumstances that made her emotionally dependent on him, did not create a fiduciary duty on the defendant to prevent the personal relationship that developed consensually between them, especially where he terminated the physician-patient relationship as soon as the personal relationship began. The plaintiff has no recourse in the law for emotional harm caused by breaches of "trust" of this kind. Rules of law based on such considerations have been discarded. See Quinn v. Walsh, 49 Mass. App. Ct. 696, 707 (2000) (amatory actions abolished by G.L. c.207, ยง47B.)
3. Intentional infliction of emotional distress.
The plaintiff's claim for intentional infliction of emotional distress fails, if for no other reason, because the record does not support an inference that the defendant acted with an intent to harm the plaintiff. The plaintiff now characterizes the defendant's conduct as "outrageous," but it is clear that she is referring to her view that the defendant breached ethical norms in permitting the affair to bloom. This conduct does not satisfy the elements of a claim for intentional infliction of emotional harm. A consensual sexual relationship in this Commonwealth will not support a claim for intentional infliction of emotional distress. Quinn v. Walsh, 49 Mass. App. Ct. at 707. See Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 466 (1997). Summary judgment for the claim of intentional infliction of emotional distress was proper.
4. Unfair or deceptive trade practices.
As previously discussed, the conduct of which the plaintiff complains was purely personal and not a business or consumer transaction.
G.L. c.93A does not apply. Kantrovitz v. Academy of Physical & Social Dev. Corp., 370 Mass. 858, 858 (1976); Lantner v. Carson, 374 Mass. 606, 607-608 (1978).
Contrary to the plaintiff's contention, a professional who violates a professional ethical rule does not become liable under G.L. c.93A in all circumstances. For example, the "disciplinary rules [for lawyers] provide standards of professional conduct... and do not in and of themselves create independent causes of action." Doe v. Nutter, McClennan & Fish, 41 Mass. App. Ct. at 141. That principle must apply to physicians as well. The absence of a right of the plaintiff to recover damages for violations of ethical norms by the defendant does not leave the public unprotected. See Levy v. Board of Registration in Med., 378 Mass. at 522-523.
Judgment affirmed.
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