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Darnaby v. Davis3/19/2002
p and that a sexual encounter took place because it was either represented to be part of the medical treatment regimen, or the medical physician took on the role of a de facto psychotherapist or other mental health care provider and failed to properly handle the transference phenomenon, as evidenced by the sexual contact. Such contact may constitute delivery of substandard medical care and may render the doctor liable in tort:
f 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. McCracken v. Walls-Kaufman, 717 A.2d 346, 352 (D.C. 1998).
Reviewing the instructions given to the jury, we note the trial court correctly recognized that the issue of treatment was raised by the evidence, and correctly submitted a jury instruction that mentioned treatment. But that instruction was vague and not adequate to explain the necessity that sexual conduct be made a part of treatment to render Doctor liable. Further, the instructions did not address the issue of whether Doctor took on the role of a therapist, thus giving rise to the transference phenomenon, which he then failed to properly handle, therefore providing substandard care.
Oklahoma law imposes a duty on the trial court to instruct upon the decisive issues of the case as supported by the pleadings and evidence introduced. See, e.g., Bradley Chevrolet, Inc. v. Goodson, 1969 OK 25, 450 P.2d 500; Vogel v. Rushing, 1949 OK 275, 212 P.2d 665. This is so even though the particular issue may not have been specifically alleged by the party prior to trial. Timmons v. Royal Globe Ins. Co., 1982 OK 97, 653 P.2d 907. If this were not true, a plaintiff could control the court's instructions by the allegations of his pleadings, regardless of whether or not they were ever supported by evidence. Williams v. Wilson, 1962 OK 33, 368 P.2d 992. Failure to so instruct is grounds for a new trial. LPCX Corp. v. Faulkner, 1991 OK 46, 818 P.2d 431; Young v. First State Bank, 1981 OK 53, 628 P.2d 707.
We therefore reverse the trial court's March 13, 2000, judgment and remand the matter for a new trial.
REVERSED AND REMANDED FOR NEW TRIAL.
STUBBLEFIELD, J. (sitting by designation), concurs, and RAPP, J., concurs specially.
RAPP, J., specially concurring:
While I am in agreement with the majority, I must also note that Plaintiff's counsel here erred in failing to properly frame the issues for the trial court and submit for its consideration requested instructions identifying and framing the issues for the jury, which this court has been required to do. Plaintiff's counsel has, in effect, been given a second chance here because he failed to identify the issue resulting in fundamental error in the trial of this matter.
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