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Darnaby v. Davis3/19/2002
in Doctor-Patient Relationship
Without Treatment Not Actionable
The court in Simmons v. United States, 805 F.2d 1363 (9th Cir. 1986), after surveying various other jurisdictions, stated: "We note that courts do not routinely impose liability upon physicians in general for sexual contact with patients." Id. at 1366. See, e.g., Smith v. St. Paul Fire and Marine Ins. Co., 353 N.W.2d 130, 132 (Minn. 1984).
In Odegard v. Finne, 500 N.W.2d 140, 143 (Minn. Ct. App. 1993), the court, surveying other jurisdictions, noted:
The general rule is that a medical malpractice claim cannot be based upon a sexual relationship between a physician and a patient being treated by the physician for a physical condition. E.g., Simmons, 805 F.2d at 1366 ("We note that courts do not routinely impose liability upon physicians in general for sexual contact with patients," citing Smith, 353 N.W.2d at 130.); Atienza v. Taub, 194 Cal.App.3d 388, 239 Cal.Rptr. 454, 457 (1987) ("In examining out-of-state authorities, we find that allegations of a physician's sexual misconduct have provided a basis for a malpractice action only where the patient has alleged that the physician induced sexual relations as part of the therapy."), pet. for rev. denied (Cal. Nov. 12, 1987); Collins, 604 N.E.2d at 1196 ("The general rule is that a physician's sexual relationship with a patient does not constitute rendition of health care services, and is not actionable as malpractice," citing Smith, 353 N.W.2d at 130.).
In Lindheimer v. St. Paul Fire and Marine Insurance Co., 643 So. 2d 636 (Fla. Dist. Ct. App. 1994), the court stated that the fact the unwanted sexual contact took place in the medical professional's office does not automatically "transmute the act into a professional service." Id. at 638. Rather, there must be some causal connection between the act itself and the doctor-patient relationship.
In Iwanski v. Gomes, 611 N.W.2d 607, 615 (Neb. 2000), the court held:
We conclude, based on the foregoing rationale, that there must be a causal relationship between the alleged harm and the complained-of professional act or service. When there is a claim of medical malpractice based on unwanted sexual contact, the determination of liability should focus not solely on the locale of the alleged harm or the professional status of the actor, but, rather, on the context of the alleged medical service involved in the action. In other words, it is the physician's deviation from the recognized medical standard of care during the course of treatment that is the essence of a claim for medical malpractice, and there must exist a causal relationship between the alleged harm and the complained-of deviation from that standard of care in order for liability to attach.
The court in Collins v. Covenant Mutual Insurance Co., 604 N.E.2d 1190, 1195-96 (Ind. Ct. App. 1992), stated:
With respect to a typical physician's sexual conduct, different reasoning has been adopted. The general rule is that a physician's sexual relationship with a patient does not constitute rendition of health care services, and is not actionable as medical malpractice. See Standlee v. St. Paul Fire & Marine Ins. Co. (Ct.App.1984), 107 Idaho 899, 693 P.2d 1101; Hirst v. St. Paul Fire & Marine Ins. Co. (Ct.App.1984), 106 Idaho 792, 683 P.2d 440; St. Paul Fire & Marine Ins. Co. v. Quintana (1988), 165 Mich.App. 719, 419 N.W.2d 60; Smith v. St. Paul Fire & Marine Ins. Co. (1984), Minn., 353 N.W.2d 130; South Carolina Medical Malpractice Liab. Ins. Joint Underwriting Ass'n v. Ferry (1987), 291 S.C. 460, 354 S.E.2d 378; Washington Ins. Guar. Ass'n v. Hicks (1987), 49 Wash.App.
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