It was medical malpractice for a Long Island family doctor to have an affair with a married patient he treated for anxiety and depression, but she shares the fault since they both sought repeated sexual encounters, New York's highest court ruled Thursday.
The Court of Appeals upheld a jury award of $338,000 in damages to Kristin Kahkonen Dupree. The jury set her fault at 25 percent, which will reduce damages by that much. The top also stripped another $166,000 in punitive damages, finding no malicious conduct by Dr. James E. Giugliano beyond breach of professional duty, making the award just over $250,000.
The nine-month affair ended in 2002. Dupree told her husband, who sued for divorce.
She sued Giugliano for malpractice in 2005, her lawyer arguing that her romantic feelings resulted from "eroticized transference," from the patient shifting emotions toward her therapist. Giugliano's lawyer countered that the affair was consensual and unrelated to treatment, which initially started with the osteopath treating her for a gastrointestinal condition.
"Here' where defendant was prescribing a course of treatment for plaintiff's mental health problems, including medication and counseling, a jury might reasonably conclude that the sexual relationship was substantially related to and, in fact, interfered with the treatment so as to constitute medical malpractice," the court ruled. "That defendant mismanaged plaintiff's medical condition does not, however, negate comparative fault. The affair continued for nine months, during which time both plaintiff and defendant clearly sought out repeated sexual encounters."
Thursday's unanimous ruling was made in a memorandum, without an individual author. It was handed down by Chief Judge Jonathan Lippman and Judges Carmen Beauchamp Ciparick, Victoria Graffeo, Susan Read, Robert Smith and Eugene Pigott Jr.
Attorney Norman Dachs, who represented Giugliano, said the court was right to throw out punitive damages, but he disagreed with the rest of the decision. "I still do not believe this had anything to do with his medical treatment and therefore the action should have been simply dismissed," he said.
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Kenneth Cooperstein, attorney for Dupree, said he thought the court was wrong on the law and the doctor showed a lack of remorse. "He testified he knew it was wrong to have sex with a patient and he did it anyway. ... They said she's 25 percent responsible for her own sexual exploitation once it went on for a while," he said.
