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Darnaby v. Davis3/19/2002
623, 744 P.2d 625.
We therefore conclude, based upon the authorities set out above, among others, that there must be some causal connection between the sexual activity within a doctor-patient relationship and the alleged damages resulting from the substandard professional medical care. That causal connection, in our opinion, is treatment.
We conclude that sexual activity between a doctor and a patient, notwithstanding the existence of a doctor-patient relationship, without more, does not give rise to a cause of action. In order to impose liability, a patient must prove that the sexual activity was represented by the doctor to be part of the treatment regimen, and the combination of a physician using sex as a treatment modality in the doctor-patient relationship resulted in damage to the patient.
Category II - Liability Imposed
Because Sex Presented as Treatment
The second category of cases are those that have found that the physician represented to the patient that some sort of sexual contact was part of the treatment regimen. In those instances, the physician can be liable for such acts.
In Hoopes v. Hammargren, 725 P.2d 238 (Nev. 1986), the court held that if a patient could prove a physician used sex to breach a fiduciary duty to that patient, a cause of action could be pursued. The Nevada court further held that a physician-patient relationship was fiduciary in nature, and taking sexual advantage of that relationship could constitute professional malpractice. The court emphasized that the patient must still prove the elements of such a violation of a fiduciary relationship, i.e., that the physician was in an authoritative position and, as a result of some illness, emotional instability, or other vulnerability, the physician exploited a condition of the patient. Thus, consensual sex, the prior termination of the physician-patient relationship, or the lack of a causal connection between the sex act and the claimed damages, would be fatal to the patient's cause of action.
Atienza v. Taub, 239 Cal.Rptr. 454, 455, 457, surveyed the existing body of law in this area and concluded:
This appeal presents a question of first impression: can allegations that a physician initiated a sexual relationship with his patient during the time he was treating her for a physical disorder state a cause of action for professional negligence medical malpractice? In our view, the answer turns on whether the sexual relationship was initiated by the physician under the guise of treatment of the patient.
....
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. (Zipkin v. Freeman (Mo.1968) 436 S.W.2d 753, 755 [psychiatrist "negligently advised plaintiff she needed further treatment by way of personal and social contacts with him even though such a relationship went beyond accepted psychiatric standards."]; Roy v. Hartogs (1976) 85 Misc.2d 891, 381 N.Y.S.2d 587, 588 [plaintiff "induced to have sexual intercourse with the defendant as part of her prescribed [psychiatric] therapy."]; Cotton v. Kambly (1980) 101 Mich. App. 537, 300 N.W.2d 627, 628 ["Plaintiff alleges that defendant induced her to engage in sexual relations with him as part of her prescribed therapy."].) Under these circumstances, the courts "see no reason for distinguishing between this type of malpractice and others, such as improper administration of a drug or a defective operation. In each situation, the essence of the claim is the doctor'
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