When one hears of medical malpractice, thoughts that may first appear in their midst may be a tragedy of a surgery gone wrong, or a doctor who neglected their patient or perhaps even a patient who died as a result of a dangerous drug. While stories such as this are much more common, a New York court has recently decided that if a doctor has an affair with a married patient, this too is considered to be medical malpractice.

News reports state that a Long Island family doctor was originally treating a patient for depression and anxiety and began having an affair with them after some time. Despite the fact that the patient acknowledges the affairs and equally sought after their frequent sexual encounters, the highest New York court still ruled this event as an act of medical malpractice. Doctor James E. Giugliano and Kristin Kahkonen Dupree had a nine month affair, which ended in 2002. Once Dupree came clean to her husband he sued her for a divorce.

In 2005, Dupree decided to sue her doctor for medical malpractice for their affair, her attorney claiming that the sexual encounters were a direct result of “eroticized transference” because of his treatment for her distress. Eroticized transference can be any feeling of emotion, though in many circumstances it is a sexual feeling, in which one individual transfers their feelings to another person. In this case, Dupree claims that her doctor used his ability as her physician to draw her sexual emotions towards himself.

At the time of the affair, the doctor was treating treat Dupree for a gastrointestinal condition. Though he was not only treating her for the condition itself, he was offering medications for the pains and healing as well as counseling for dealing with the sickness. Because of the doctor offering the counseling, the court did decide that the sexual affair was in fact related, and therefore got in the way of the patients proper treatments; hence the court’s decision of medical malpractice.

Giugliano’s lawyer continued to argue that their affair was entirely consensual, and that his client was not at fault, nor was it related at all to the medical treatments. Despite the doctor’s attempts to fight the lawsuit, the Court of Appeals awarded Dupree $338,000 in damages for the medical malpractice, stating that while she was indeed a victim, she was still 25% at fault for the events that occurred over the nine month period. However because her being one quarter at fault for the affair, the court then subtracted money for punitive damages, stating that Dr. Giugliano was responsible for no malicious conduct, breaching his professional duty. Therefore the court stripped her significantly of her damages payment and after the hearing she received a little over $250,000 from the jury award.

The court ruling was unanimous between Chief Judge Jonathan Lippman as well as Judges Carmen Beauchamp Ciparick, Susan Read, Robert Smith, Victoria Graffeo and Eugene Pigott Jr. Regardless of the court undivided decision for the medical malpractice ruling, Attorney Norman Dachs, who represent Dr. Giuliano still does not believe that his client can be held accountable for medical malpractice after a consensual affair. Nevertheless, the doctor acknowledged his actions were wrong, and despite the consent of his patient, though he showed very little remorse for his actions.

Medical malpractice is an act that can be done by any peoples or entities in the medical profession. This includes any nurses, physicians, surgeons, technicians, pharmacies and companies as whole. Any act that places the patient in danger or displays a failure to offer the patient the care and treatments they deserve may be considered as an act of medical malpractice. If you or someone you know has been wrongly or negligently treated by someone in the medical profession, find an attorney in your area to help you fight for the compensation that you deserve.