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Darnaby v. Davis3/19/2002
s departure from proper standards of medical practice." (Cotton v. Kambly, supra, 300 N.W.2d at pp. 628-629.)
The relevant authorities therefore agree that a physician who induces a patient to enter into sexual relations is liable for professional negligence only if the physician engaged in the sexual conduct on the pretext that it was a necessary part of the treatment for which the patient has sought out the physician.
Category Three - Transference Induced and Mishandled by Non-Psychologist Physician
The final category of cases borrows from the body of law dealing with psychological treatment and the transference phenomenon. As discussed briefly above, a psychologist, psychiatrist, or other professional mental health care provider is often the target of a patient's transference. Failure to properly handle that recognized mental health occurrence is actionable in those cases, because failure to employ techniques of counter transference falls below the accepted standard of care. Although transference is generally not recognized as a medical issue, there are reported cases in which a medical physician who was not a psychiatrist or psychologist, nevertheless provided such ad hoc counseling and emotional support as to have effectively taken on the role of a mental heath care professional, and failed to properly handle the resulting transference phenomenon.
The court in McCracken v. Walls-Kaufman, 717 A.2d 346, 352-53 (D.C. 1998), held:
We hold that if a medical professional not practicing in the field of mental health enters into a relationship of trust and confidence with a patient and offers counseling on personal matters to that patient, thus taking on a role similar to that of a psychiatrist or psychologist, that professional should be bound by the same standards as would bind a psychiatrist or psychologist in a similar situation. See Dillon, supra, 609 N.E.2d at 428 (physician who acted as patient's therapist, even though "not a practicing psychiatrist," was appropriately held to standard of therapist); Shamloo v. Lifespring, Inc., 713 F.Supp. 14, 17 (D.D.C.1989) ("[District of Columbia] case law does not hold that an unlicensed purveyor of 'professional' psychological services should be afforded greater protection from claims of negligence or malpractice than a licensed one."); cf. Correll v. Goodfellow, 255 Iowa 1237, 125 N.W.2d 745, 749 (1964) (chiropractor held to standard of care of medical doctor when he left realm of standard chiropractic techniques by administering ultra-sonic treatments to a patient's foot).
Therefore, as a medical professional, Dr. Walls-Kaufman can be found liable in tort for medical malpractice if it is found that he engaged in sexual acts with his patient, Mrs. McCracken, and if the McCrackens have established the following: that in the course of Dr. Walls-Kaufman's chiropractic treatment of Mrs. McCracken, a relationship similar to a psychologist-patient relationship developed between the two; that it was a breach of the applicable standard of care for Dr. Walls-Kaufman to engage in sexual acts with Mrs. McCracken during the course of or attendant to that relationship; and that the breach of the standard of care by Dr. Walls-Kaufman proximately caused Mrs. McCracken's claimed injuries. Because in actions for medical malpractice issues such as the applicable standard of care and causation are not "within the ken of the average lay juror," appellants will be required to establish them through expert testimony.(Footnote omitted.)
The court in Simmons v. United States (9th Cir.1986), 805 F.2d 1363, 1366, put it this way:
The crucial factor in the therapist-patient relationship wh
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