Court of Appeals Watch: Dupree v Giugliano

Dupree v. Giugliano - In this action claiming medical malpractice, the plaintiff seeks to recover for a consensual sexual relationship with her family practitioner physician that allegedly led to her divorce, emotional injuries, and loss of marital financial support.  Principally at issue will be whether the sexual relationship constitutes medical malpractice.

The Appellate Division, Second Department, concluded it did in its 3-1 decision.  The majority noted that the physician gave advice concerning plaintiff’s panic attacks, prescribed an antidepressant for depression, recommended plaintiff see a psychiatrist or psychologist, and discussed “mental health issues” at least partially related to problems with her marriage, which was characterized as “talk therapy.”   In the Court's opinion, these actions constituted mental health services subjecting the physician to the standards of a mental health provider.  Under those standards, a sexual relationship with the patient would be a departure from the standard of care.

In dissent, Justice Skelos argued that a physician’s conduct can be medical malpractice only when it is “medical treatment or bears a substantial relationship to the rendition of medical treatment.” According to Judge Skelos, here, the physician's actions did not constitute medical treatment.  In particular he pointed to the plaintiff’s admission that the relationship was “not ‘part of the treatment’” and reasoned that the consensual relationship would be intentional conduct extraneous to treatment and should not be considered medical malpractice.

Oral argument will be this Wednesday, October 17, 2012. The Court streams oral arguments live online.  To watch them live, you can visit the New York Court of Appeals website on Wednesday after 2:30 p.m. and click on the “Oral Arguments Webcast” link on the right-hand side of the screen.