 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
R.W. v. Schrein11/1/2002
from the act of a layperson. In this case, however, the critical issue is whether the act performed is "professional" as opposed to unprofessional. In other words, the fact that the actions occurred between a doctor and patient is pertinent only if the act itself is of a professional nature. See St. Paul Ins. Co. of Illinois v. Cromeans, 771 F. Supp. 349 (N.D. Ala. 1991).
We recently revisited the Marx holding in Iwanski v. Gomes, 259 Neb. 632, 640, 611 N.W.2d 607, 613 (2000), which presented the question whether "a doctor commits malpractice by engaging in sexual relations or having consensual sex with an individual with whom the doctor concurrently maintains a physician-patient relationship." After recognizing our holding in Marx v. Hartford Acc. & Ind. Co., 183 Neb. 12, 157 N.W.2d 870 (1968), we concluded that in order to establish that conduct by a physician constitutes malpractice, the acts of the physician upon which the claim is based must "'be such as exacts the use or application of special learning or attainments of some kind'" that would constitute the "'performing or rendering of "professional" acts or services.'" Iwanski, 259 Neb. at 641, 611 N.W.2d at 614 (quoting Marx, supra). In addressing whether the acts of the physician fell within this definition, we referred to case law from other jurisdictions interpreting "professional services" coverage in insurance contracts. We then stated:
We agree that the fact that sexual misconduct occurs in a medical professional's office "does not automatically transmute the act into a professional service [because the] location of an act's occurrence is not determinative of liability." Lindheimer v. St. Paul Fire & Marine Ins., 643 So. 2d 636, 638 (Fla. App. 1994). When the only connection between the sexual misconduct and treatment is that the activity occurred in the medical professional's office, such a connection is too remote from the actual rendering of proper services to impose liability upon the medical professional for malpractice. See Roe v. Federal Ins. Co., 412 Mass. 43, 587 N.E.2d 214 (1992).
We conclude, based on the foregoing rationale, that there must be a causal relationship between the alleged harm and the complained-of professional act or service. When there is a claim of medical malpractice based on unwanted sexual contact, the determination of liability should focus not solely on the locale of the alleged harm or the professional status of the actor, but, rather, on the context of the alleged medical service involved in the action. In other words, it is the physician's deviation from the recognized medical standard of care during the course of treatment that is the essence of a claim for medical malpractice, and there must exist a causal relationship between the alleged harm and the complained-of deviation from that standard of care in order for liability to attach. (Emphasis in original.) (Emphasis supplied.) Iwanski, 259 Neb. at 642, 611 N.W.2d at 614.
In applying this standard to the facts, we held that the relationship between the adult parties was consensual and that as to the only incident related to the direct provision of medical services, the evidence established that the sexual act between the patient and the physician took place well after the physician had completed a gynecological examination. We thus held that there was no actionable claim for "professional negligence." Id. at 643, 611 N.W.2d at 615.
Relying on our decision in Marx, supra, and consistent with our decision in Iwanski, supra, the clear majority rule among other jurisdictions is that outside the unique circumstance of mishandling the transference phenomenon in psychiatric counseling, sexual conduct i
Page 1 2 3 4 5 6 7 8 Nebraska Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|