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Doctor Sued for Mixing Sex and Psychology


Sex and Malpractice

When does a physician's sexual affair with his patient become medical malpractice?

When he treats her for mental health issues, the New York State Supreme Court Appellate Division, Second Department has determined.

In a September decision and order in the case of Dupree v Giugliano, three out of four judges who heard the appeals of the results at trial, determined that when a Long Island family practitioner — who was neither a psychiatrist or psychologist — began treating his patient for depression and panic attacks, prescribed anti-depressants and conducted "talk therapy," he was providing her with mental health services. As a result, the sexual affair that followed constituted medical malpractice.

The problem was not that he went beyond his medical expertise, but that he became physically intimate with a patient to whom he was rendering psychological care. That made the doctor subject to the same standard as a mental health professional who has sex with a patient, something that is broadly condemned. The appellate court called the defendant's conduct "reprehensible."

"A sexual relationship between a mental health provider and a patient is a departure from the standard of care, whether it is characterized as part of the treatment or independent of it, and it is a departure" from the accepted standards, the court wrote. "When the defendant started providing 'talk therapy,'" the appellate court wrote, "[he] assumed the duty of care applicable to mental health providers."

The acceptable conduct for mental health professionals and intimate relations with patients is higher than it is for other doctors, and sexual relations are a departure from accepted standards.

What the Doctor Did

The doctor, James Giugliano, also referred the patient, Kristin Dupree, to a psychologist who was a friend of his. In therapy with the psychologist, Dupree discussed having a nine-month affair, but because of the friendship between the two doctors, she did not reveal that her lover was actually Giugliano. The court saw this as evidence that his conduct damaged her. Once the affair ended, Dupree confessed to her husband who then proceeded to get a divorce.

A Long Island jury had found that Giugliano's conduct, was medical malpractice because it departed from accepted medical standards, interfered with the plaintiff's treatment and caused damage to her. The jury awarded her $416,500 in damages, including $150,000 for past mental distress, $50,000 for future mental distress, and $134,000 for loss of past financial support, and also awarded the plaintiff $166,000 in punitive damages. The jury also found that the doctor was 75 percent liable and Dupree 25 percent liable, reducing the award to her by a quarter.

Both sides appealed, he seeking dismissal, and she asking the court to attribute 100 percent of the liability to the defendant. She also wanted an increase in monetary damages and the legal fees she incurred in the divorce commenced by her husband. Both appeals were denied, and the court upheld the jury's verdict.

The court's majority agreed that there is a special duty of trust here, writing, "A mental health provider's duty is different, and a sexual relationship between that provider and a patient violates the trust that lies at the heart of the relationship." The court upheld punitive damages, which is unusual, saying that the doctor demonstrated "gross indifference to his patient's well-being."

Immoral but Not Actionable

The one dissenter, Judge Peter Skelos, saw the plaintiff's case differently and would have dismissed it entirely. He reasoned that a doctor cannot be liable for malpractice that is unrelated to his medical treatment even where it is unethical and a "moral impropriety." In other words, Giugliano committed no malpractice in his field – family medicine.

In his dissenting opinion, Skelos wrote, "By engaging in sexual relations with the plaintiff, the defendant may have committed professional misconduct warranting disciplinary penalties, such as revocation of his license. Further, the defendant undoubtedly acted unethically from a moral perspective, particularly due to the plaintiff's vulnerable emotional state. However, not all immoral conduct is actionable in tort. Nor does a violation of professional ethical guidelines, if such were the case here, by itself necessarily support a civil cause of action to recover damages for malpractice."

Skelos relied for precedent on a 1996 opinion by the same court that heard the present case. It too involved a doctor defendant – an allergist &dmash; who saw the patient twice a week for allergy injections and also, on an undisclosed schedule, for sexual relations. That case, Gross v Kurk had been dismissed at the trial level. The dismissal was affirmed with the appellate court saying, "Negligent conduct by a physician constitutes malpractice only when the conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment." The Gross opinion went on to say, "In the instant case the plaintiff made no allegation that her social and sexual relationship with the defendant constituted part of her treatment or was in any way related to her treatment."

The judges in the majority in the Dupree case, Joseph Covello, Ruth Balkin and Leonard Austin, rejected Skelos' analysis because in the Gross case, unlike the more recent one, the doctor never provided mental health services to his patient.

Emily Jane Goodman is a New York State Supreme Court Justice

In Case of Bank vs. Vet, Courts Rule for Service Member


wachovia
Photo by Mark Chang
A former Air Force reservist charged that Wachovia, now part of Wells Fargo, violated federal law when it essentially cut his pay and demoted him after he returned from active duty.

When Michael Serricchio was called up for active duty by the United States Air Force Reserve soon after Sept. 11, 2001, he left his job as a financial advisor at a Stamford, Conn., office of Wachovia Securities, LLC. Upon returning from military service in 2003 he claimed his original job, but the employer offered him an inferior and lower-paying position. Serricchio sued Wachovia alleging violation of the federal Uniformed Services Employment and Reemployment Rights Act or USERRA.

Last week the Manhattan-based U.S. Court of Appeals for the 2d Circuit, which covers Connecticut as well as New York and Vermont, ruled that the law guaranteed Serricchio reinstatement to his prior employment position or its equivalent and that Wachovia violated the law and the veteran's rights. Three appellate judges agreed with the findings of a lower federal court jury and judge that defendant Wachovia had violated the USERRA by failing to promptly rehire the plaintiff and to place him in a position of "seniority, status and pay," similar to what he left. It took six months to rehire him instead of the mandated two weeks, and he was not returned to his prior job.

The appeals court therefore affirmed the lower court including an award of $389,453 in back pay and, because the defendants acted willfully, an equal amount in damages. Wachovia was also ordered to pay Serricchio $12,300 a month for three months, while he caught up and could begin generating commissions again. The goal was to provide compensation that would be the equivalent of what he could have expected to earn had his employment not been interrupted by his military service. That came to $6,500 per month or approximately $78,000 per year in commissions.

Civilian Life

The USERRA is one of a series of laws going back to World War II and amended during America's war in Vietnam. The purpose has been "to encourage military service by eliminating or minimizing the disadvantages to civilian careers; to minimize the disruption to the lives of service members and their employers by providing for the prompt reemployment of service members and to prohibit discrimination against service members."

Wachovia ignored that here, the courts determined. The bank had intentionally violated the federal law meant to protect men and women returning from the military service since he had been entitled to a prompt "opportunity to reenter the workforce with comparable earning potential and chance for advancement as his own book of business provided prior to his service, regardless of whether the same clients are in the substituted books." As described by U.S. District Court Judge Janet Arterton, the delayed "reinstatement offer [was one] that a reasonable person could regard as financially precarious and professionally degrading."

Prior to going on active duty, Serricchio was responsible for servicing as many as 200 accounts and for personally managing over $4 million dollars. But Wachovia argued it did not have to offer Serricchio the same commission opportunities he had before going on active duty and that USERRA provides only that an employee "who takes military leave will be returned to work at the same commission scale that he worked at prior to the leave, along with an initial monthly draw." In other words, the bank maintained it only had to provide Serricchio with the same commission structure but not with his prior book of business, upon the service member’s return from active duty.

A jury and judges disagreed. When Serricchio was honorably discharged in October 2003, Wachovia offered him something akin to an entry level position, the opportunity to make "cold calls" to rebuild his book of business, "a task," wrote the appellate court, "he had not been required to undertake since the early days in his career."

The Labor Department's View

The trial judge sought input from the federal government, seeking interpretations of the law. The Department of Labor submitted that in addition to returning him to his seniority and entitlement to any benefits and opportunities, "Wachovia should have determined what Serricchio's book of business would have been but for his military service by examining how Serricchio's financial analysis fared during his absence, and then offered Serricchio his original and/or comparable client accounts that corresponded to his 'escalator position' book of business. If that was not possible the labor department continued, "Wachovia should have taken steps to restore Serricchio to a position of like 'pay,' such as paying him an appropriate interim salary or offering him other opportunities for additional compensation while he built up his book of business to the requisite level."

The department stated that Wachovia violated USERRA when it required Serricchio to "cold call" to rebuild his client accounts. "This requirement diminished Serricchio’s level of responsibility, his position vis-a-vis other employees, and his opportunity for advancement," it said.

While the act does contain an exception "if the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable," Wachovia did not raise that point in a timely fashion and therefore could not pursue it or seek a finding that it did or did not have merit.

(In the years since Wachovia, once the nation's fourth largest bank, teetered on the brink of failure until it was taken over by Wells Fargo.)

The three-judge appellate bench composed of judges Rosemary Pooler, Richard Wesley and John Koeltl, whose opinions are binding on federal courts within this circuit, concluded that the relevant statute entitles a returning service member to the "seniority and other rights and benefits determined by seniority that the person held on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed."

Emily Jane Goodman is a New York State Supreme Court Justice

Constitution Lets Public Health Trump Religion, Judge Rules


vaccination

All children entering school in New York state must be immunized from certain diseases.

According to the state's Public Health Law, "No principal, teacher, owner or person in charge of a school shall permit any child to be admitted to such school, or to attend such school, without evidence of the child’s immunization against" polio, mumps, measles, diphtheria, rubella (or German measles), varicella (commonly known as chicken pox), hepatitis B, pertussis or whooping cough, tetanus, and, where applicable, influenza and pneumonia."

But the law goes on to say that the requirement "shall not apply to children whose parent, parents or guardian hold genuine and sincere religious beliefs, which are contrary to practices herein required."

In the last decade, the number of parents who refuse to vaccinate their children or who delay their vaccinations has risen. An increasing number of parents who object to inoculating their children are relying on the religious exemption in refusing immunization. Claims of religious prohibitions on vaccinations must be reviewed on a case-by-case basis, at the school and Department of Education or school district level, but sometimes there are lawsuits.

Relying on God

In July, the Brooklyn-based U.S. District Court for the Eastern District of New York rejected the claims of a Long Island couple who, beginning in 2007, asserted a religious basis for their refusal to immunize their daughter who was then almost 4 and an applicant to pre-kindergarten. After the school principal denied their request for an exemption, the parents declined a meeting with the superintendent, and in Caviezel v Great Neck Public Schools sued their local school system in an effort to enroll their child, identified in court records only as "CC," without complying with the inoculation requirement. The parents, whose three older children had been inoculated, now claimed to have a religious objection to immunization, and argued that they were protected by New York's statute and both the state and the U.S. Constitution.

At a court hearing, the mother, Martina Caviezel, testified, "I don't believe that vaccinations are necessary. I just believe if you look at the human being, if you look at the universe, we're divine, we're just divine. It's just the design is perfect. There's no other way to say it. It's just perfect. I’m a hypnobirthing practitioner. ... If I were to explain my religion, I probably would say I'm a Pantheist. I see God in everything. I believe God's present." She testified that in her religion she practiced mostly breathing, "because in breathing, to be present, I can be present to the presence of God. You could call it breathing meditation, yes, but I also mean just stopping for a moment and taking a breath and starting to hear the birds, starting to see the flowers, starting to notice people around you."

She told the court that she was ordained as a priest two years earlier by the Sanctuary of the Beloved, which is a "church," in Buffalo. According to the group's website, its priests "are not required to 'give up' anything they believe in or to resign from any other organizations. They are simply given an 'energy boost' to enhance the work they are already doing. There is no doctrine they must follow." Caviezel described her training as a minister as one-day preparation for energetic ordination.

The court found it significant that Martina Caviezel testified that, as far as she knows, the Sanctuary of the Beloved does not take any position on the propriety of vaccination and never instructed her that she could not get her children vaccinated. The court's decision also cited Caviezel's general objection to vaccinations because of her concern about their safety and possible link to autism.

Caviezel's lawyer attempted to convince the judge that the mother had tattoos that are actually prayers, and that the family engaged in "religious rituals, prayer, meditation, tattooing, fasting and the other types of activities" that would be "considered an indicia of religion." The court ruled that the lawyer had improperly raised this argument and so did not consider it.

The Public Good

In recent years, immunization has been challenged and refused by parents and advocates who believe that vaccines cause autism, although they have not been able to establish that scientifically. Those opposed to allowing children to remain susceptible to diseases, argue that those who are not immunized either because they object, or perhaps come from other parts of the world where particular diseases are common and vaccinations are not, present a danger to others within their own families and to the public. The concept that prevails, known as "herd immunity" is that there is a tipping point within a community at which a certain percentage of individuals lacking inoculation against a particular disease threatens other members of that community, including, for example, pregnant women or inoculated individuals who may have had an immunity to the vaccine.

Last month Judge Arthur Spatt dismissed the claims of Martina Caviezel and Andreas Schenck Caviezel as not being "religious in nature." His decision went beyond that, however, to rule, that despite the religious exemption granted by New York's legislature, the state's immunization requirement does not violate the Constitution’s First Amendment. He specifically rejected the claim that it did. Spatt referred to the U.S. Supreme Court which has not directly addressed the inoculation issue, but has stated, “Generally the right of parents to raise their children in accord with their personalized and religious beliefs must to yield the health of children is at risk or when there is a recognized threat to public safety."

According to the Spatt decision and other federal cases, "It has been settled law for many years that claims of religious freedom must give way in the face of the compelling interest of society in fighting the spread of contagious diseases through mandatory inoculation programs."

Another local federal decision held, "Society's compelling interest in preventing disease must override any personal opposition to immunization that some persons may possess. Therefore, the statutory exception must be restricted to persons whose opposition to immunization stems from 'religious’ belief'; not views founded upon medical, personal, philosophical or even moral considerations."

Still, the language in the Spatt opinion is the strongest on this issue so far. Under the U.S. Constitution, it holds, there is no religious basis to refuse immunization of children.

Emily Jane Goodman is a New York State Supreme Court Justice



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