• New York Court of Appeals Finds That Consensual Sexual Relationship Constitutes Malpractice
  • December 4, 2012 | Authors: Charles A. Jones; Jordan M. Rubinstein
  • Law Firm: Troutman Sanders LLP - Washington Office
  • On November 29, 2012, the New York Court of Appeals affirmed the lower court’s order in Dupree v. Giugliano, holding that Defendant committed malpractice by entering into a consensual sexual relationship with his client. The Court of Appeals also affirmed the trial court’s charge that Plaintiff also could be at fault. The Court of Appeals, however, vacated the lower court’s award for punitive damages, holding that Defendant’s malpractice did not meet the standard for awarding punitive damages.

    In January 2000, Kristen Kahkonen Dupree sought and obtained treatment for depression and stress from licensed family physician James E. Giugliano. In June 2001, Dupree and Giugliano became involved in an adulterous relationship that they mutually ended nine months later. Dupree confessed the affair to her husband, who filed for divorce. The divorce was contentious, and proceedings lasted for five years before settlement was reached. Dupree filed a lawsuit against Giugliano in 2005 alleging medical malpractice. During the trial, Dupree’s expert testified that Dupree’s feelings for Giugliano were the result of “eroticized transference,” a medical phenomenon that causes a patient to experience extreme attraction to a treating physician, an attraction that the patient is powerless to resist. Dupree claimed she knew the affair was wrong, but was unable to control herself. The jury found that Giugliano committed malpractice, and that Dupree was 25 percent at fault. The jury awarded Dupree damages for past and future mental distress and future lost income. The jury also awarded Dupree punitive damages. Both parties sought leave to appeal, which was granted.

    The Court of Appeals found that the sexual relationship was related to, and interfered with, treatment of Dupree as to constitute medical malpractice, and that Giugliano’s mismanagement of Dupree’s medical condition did not negate comparative fault. The Court of Appeals also noted that the jury was free to reasonably discount the expert’s testimony that Dupree was without volition during the nine-month affair. Furthermore, the Court of Appeals held that punitive damages were improperly awarded because Giugliano did not act with “manifest evil or malicious conduct beyond any breach of professional duty,” the standard for awarding punitive damages.