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Darnaby v. Davis3/19/2002
Modified: October 28, 2002; modified October 31, 2002.
CLESTA DARNABY AND JEFF DARNABY, PLAINTIFFS/APPELLANTS
v.
MARTIN J. DAVIS, D.O., DEFENDANT/APPELLEE
APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE SHARRON M. BUBENIK, TRIAL JUDGE
Keith A. Ward, Stephanie Dinsmore Phipps, Richardson, Stoops, Richardson & Ward, Tulsa, Oklahoma, for Plaintiffs/Appellants
Bruce A. McKenna, Holden, Glendening & Mckenna, Tulsa, Oklahoma, for Defendant/Appellee
The opinion of the court was delivered by: Jerry L. Goodman, Presiding Judge
Mandate Issued: 10/25/2002
__ P.3d __
REVERSED AND REMANDED FOR NEW TRIAL
This is Clesta (Patient) and Jeff Darnaby's appeal from the trial court's March 13, 2000, order entering judgment on a jury verdict rendered in favor of Martin J. Davis, D.O. (Doctor), on Patient's claim of negligence and battery arising out of sexual encounters which took place in Doctor's office. Patient contends the trial court erred when it failed to grant judgment to her as a matter of law on the issue of whether Doctor was treating Patient after Doctor admitted the existence of a doctor-patient relationship at the time of the encounters. Patient also contends the trial court improperly instructed the jury. Based upon our review of the appellate record and applicable law, we reverse and remand the matter for a new trial.
FACTS
Doctor, a general practitioner, began medically treating Patient in 1990 for complaints of anxiety and chest pains and, later, for monopolar depression. He continued as her physician until 1996. Doctor initially prescribed medication for Patient to treat her conditions. When Doctor determined Patient's psychological problems were more complex, he referred her to a psychiatrist in 1992, who diagnosed Patient as having Post-Traumatic Stress Disorder and Multiple Personality Disorder. Patient stopped seeing the psychiatrist after 4 months. Doctor admitted he continued to treat her for her emotional states, but denied he was treating her for psychological conditions.
In August 1995, Doctor, acting as Patient's medical "gatekeeper" i.e., one responsible for coordinating all her medical treatment rendered by himself and other medical professionals, admitted to having two sexual contacts with Patient in his office. Prior to that time, Doctor and Patient had engaged in kissing in Doctor's office. Also, by May of 1995, Patient had told Doctor she had formed a strong personal attachment to him.
In 1996, the Oklahoma State Board of Osteopathic Examiners (OSBOE) investigated Doctor's conduct and temporarily suspended him from the practice of medicine. An order from the OSBOE dated October 23, 1996, recited that Doctor had "established a physician-patient relationship with Patient, which continued until 1996" and found that Doctor "engaged in sexual activity within this physician-patient relationship."
Patient sued Doctor on June 18, 1997, for negligence and sexual battery. Doctor defended his actions by stating that his relationship with Patient had become personal, and was not treatment, though he admitted a physician-patient relationship existed at the time in order to act as her gatekeeper. The trial court instructed the jury that it could find Doctor was in a physician-patient relationship with Patient, yet not be "treating" her. Patient claims this was error.
ISSUES
Patient's brief in chief preserves two issues on appeal: Whether t
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