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Darnaby v. Davis3/19/2002
ich leads to the imposition of legal liability for conduct which arguably is no more exploitative of a patient than sexual involvement of a lawyer with a client, a priest or minister with a parishioner, or a gynecologist with a patient is that lawyers, ministers and gynecologists do not offer a course of treatment and counseling predicated upon handling the transference phenomenon. See A. Stone, M.D., Law, Psychiatry, and Morality 199 (1984).
As the Oklahoma Supreme Court in Bladen v. First Presbyterian Church, 1993 OK 105, , 857 P.2d 789, 794, recognizes:
Thus, claims for negligence against psychologists, psychiatrists, and therapists are based upon a mishandling of a specific tool [transference/counter-transference] used by those professionals in the course of treatment, and the departure from the professional norm is regarded as a type of malpractice for those professionals. This analysis suggests that professionals who do not use the transference mechanism are not subject to the same claim of counseling malpractice arising from the consensual sexual conduct of adults unless the conduct violates some other professional standard of conduct.
Bladen quotes at length, and with apparent approval, many of the authorities we have cited above which discuss a therapist's mishandling of the transference phenomenon. Bladen did not present the court with the issue now before us, and therefore the court did not directly address the question of whether a doctor who provided such ad-hoc counseling and emotional support so as to have effectively taken on the role of a mental heath care professional, and who failed to properly handle the resulting transference phenomenon, may be liable for any resulting damages. However, we conclude that because Bladen recognizes that a cause of action arises from the "mishandling of a specific tool used by [mental health] professionals in the course of treatment," that if presented with facts that proved that tool was wielded and mishandled not by a psychologist, psychiatrist, or other therapist, but by a general practitioner who, through his actions effectively took on the role of a mental health care provider, that courts of this state would recognize a cause of action.
Application to Case at Bar
Having established what is and what is not actionable in this state, we now turn to the specific propositions of error raised by Patient. Patient's first proposition is that the trial court erred when it permitted evidence and testimony to be presented to the jury that allegedly effectively relitigated the issue of whether a physician-patient relationship existed, despite the Board's earlier finding, and Doctor's admission that it did exist. We find this to be without merit because the existence of the doctor-patient relationship was stipulated and was not subject to relitigation. As set out above, Doctor admitted having sexual contact with Patient, and admitted to remaining Patient's primary physician at the time. However, the validity of Doctor's defense - that he was not treating Patient for her psychological problems, or that this was merely consensual sexual contact between two adults, was a question of fact for the jury. As set out above, there must be a causal connection between the doctor-patient sex act and Patient's damages and, as we have determined, that connection is treatment. Just as Patient should be permitted to introduce evidence proving treatment took place, so should Doctor be allowed to introduce evidence that no treatment took place.
Patient's next proposition of error is that the trial court erred in giving Jury Instruction No. 11, which reads as follows:
You are instructed that Ma
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