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Darnaby v. Davis3/19/2002
rtin Davis, D.O., has admitted that he engaged in sexual activity within the physician/patient relationship. However, the ultimate issue of treatment at the time of the sexual encounters is for your consideration and decision.
Patient objected to the instruction on the basis that the issue of sexual conduct within a physician-patient relationship was already established, and thus the issue was precluded. Patient objected that the "meaningless" distinction between the "physician-patient" relationship and "treatment" rendered the instruction infirm. It is important to note that this is the only instruction which purports to address the circumstances under which a physician may be liable for sexual relations with the patient.
Standard of Review of Jury Instructions
We review given or refused jury instructions to determine whether there is a probability the jurors were misled thereby and reached a different conclusion than they would have reached but for the questioned instruction, or whether there was excluded from consideration a proper issue of the case. Ankney v. Hall, 1988 OK 101, 764 P.2d 153; Woodall v. Chandler Material Co., 1986 OK 4, 716 P.2d 652; Van Wart v. Cook, 1976 OK CIV APP 39, 557 P.2d 1161.
Based upon our analysis above, we hold the trial court's instruction was proper in charging the jury with the task of ascertaining whether treatment occurred. We reverse the case, however, and remand for a new trial because we hold, based upon the evidence set out below, that neither this instruction, nor any other instructions, sufficiently instructed the jury regarding the circumstances under which the Defendant could be liable for negligence. The court's instructions failed to adequately apprize the jury that the Defendant could be liable (1) if he incorporated sexual conduct with the patient as a purported treatment modality, or (2) he, in effect, took on the role of a psychologist-psychiatrist giving rise to a possible transference phenomenon.
In this connection, the record reflects Doctor admitted at trial that:
Well, my role as physician really changed with her. As I said, I became more of a confidante. I became more of a sounding board for everything that was going on. So, you know, I left my role, which was totally wrong, as a physician, and became personal with her.
He later stated:
A: As I said, I took on the role of being closer to her.
Q: Now, how many other patients did you have that you decided to take on a different role with at that time?
A: At that time?
Q: Yes, sir.
A: None.
We conclude that evidence at trial suggested that despite Doctor's referral to a psychiatrist to handle Patient's emotional and psychological problems, and despite his continued encouragement of Patient to continue to seek psychological counseling, a jury could find that Doctor's admitted role of "confidante," "friend," and "sounding board" was of such a nature that Patient could have interacted with Doctor not only as a medical care provider, but as a psychotherapist as well. This possibility was recognized by Doctor when he testified that as early as March 1992, he discussed the concept of transference with Patient, and knew that he should have terminated the doctor-patient relationship, but chose not to do so.
Nothing herein should or can be interpreted to obviate Patient's burden of proof. In order to prevail on her claim, Patient must overcome the defenses of consensual sex and the termination of the doctor-patient relationship prior to the sex act, and affirmatively prove the existence of a doctor-patient relationshi
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