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Darnaby v. Davis3/19/2002
he trial court erred when it refused to grant judgment to her as a matter of law on the issue of whether Doctor was treating Patient once Doctor admitted the existence of a physician-patient relationship, and whether the trial court thereafter properly instructed the jury on that issue.
ANALYSIS
Is Sex Between Parties to a Doctor-Patient Relationship Ipso Facto Actionable?
Patient's appellate brief states "there is no distinction between 'treatment' and a 'physician-patient relationship' and the use of the term 'treatment' merely confused the jury" which statement provides the framework of our analysis.
Thus, we must first determine whether or not sexual contact between a doctor and his or her patient is actionable in this state. If such contact is always actionable, we would have to conclude that the distinction between the existence of a doctor-patient relationship and the treatment of a patient is artificial and meaningless, and would automatically grant Patient judgment. In other words, if a sexual act between the two parties in a doctor-patient relationship, standing alone, creates a cause of action, it follows that it makes no difference whether the act of sex was part of the medical regimen.
On the other hand, if the existence of a doctor-patient relationship is beyond dispute - as in this case - yet sexual contact between a doctor and a patient is not actionable per se, then we would have to conclude that there is a distinction between the doctor-patient relationship and treatment, and that the trial court correctly instructed the jury to consider such distinction.
Initially, we note that we are not addressing the professional ethics of sexual contact between a medical professional and a patient, which is universally condemned. Nor do we address sexual contact of a criminal nature. Our inquiry is limited to the facts of this case - sexual contact between a physician and his adult, female patient.
Further, we do not address the medico-legal issues rising from the doctor-patient relationship between a psychiatrist, psychologist, or other mental health counseling professional, and a patient. These cases involve the phenomenon of transference. Many courts recognize a cause of action against a mental health care provider who engages in sexual acts with a patient because such conduct is evidence of the professional's mishandling of the transference phenomenon, which is a recognized risk in this field. For a discussion of this issue, see Simmons v. United States, 805 F.2d 1363 (9th Cir. 1986). As discussed later, the transference phenomenon is not usually recognized as occurring in a non-psychological treatment situation.
There are no Oklahoma cases that directly address the issue of whether or not sexual contact between a doctor and a patient is actionable. However, other jurisdictions have addressed the issue.
These cases fall into three broad categories. The first and largest category is best described as those cases which hold that, absent proof that a physician used sex as a treatment modality, the mere fact of sexual contact between the physician and the patient is not actionable. The second category involves physicians who used sex as a treatment modality. These cases hold that the physician can be held liable for substandard professional services. The last category of cases are those in which a non-psychiatrist/psychologist physician became so involved with a patient that the physician effectively took on the role of a psychiatrist, and mishandled the resulting transference phenomenon.
We will now address each category.
Category I - Sex With
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