Can an adulterous affair with a patient be considered medical malpractice? A New York court has ruled that it can.

The case involved a married female patient, Kristin Kahkonen Dupree, who sought treatment for depression and anxiety from a licensed family physician, James Giugliano, in January of 2000.

Giugliano prescribed antidepressants, which he later switched in response to the Dupree’s concern that the medication was affecting her libido. Giugliano recommended exercise and warm baths for stress, and referred Dupree to a therapist.


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A year and a half later, while Guigliano was still treating Dupree, they began an affair. The first instance occurred at a gym where Giugliano was showing Dupree exercises to reduce stress and anxiety. Sexual encounters continued, several times a week, for the next nine months until both parties decided to end the relationship. Dupree confessed the situation to her husband, who subsequently divorced her.

Dupree sued her former physician for medical malpractice, testifying that she felt the affair was wrong, but was unable to stop. Her attorney put an expert on the stand, who testified that Dupree’s romantic feelings towards her doctor were a result of “eroticized transference,” a phenomena where the patient experiences extreme attraction to a treating physician that the patient is unable to resist. Dupree alleged damages as a result of mental distress caused by Giugliano’s malpractice.

The judge instructed the jury that Dupree could be found partially at fault for her own injuries — a legal theory called comparative fault. The jury ultimately found Dupree 25% at fault for her injuries and Giugliano 75% at fault. The jury awarded Dupree $154,000 for past mental distress, $50,000 for future mental distress, $134,000 for past loss of income and $166,000 for punitive damages. These awards were reduced by the 25% that Dupree was at fault.

The case was appealed, and the New York Court of Appeals held that Giugliano had a professional duty to manage the “transference” when he began treating Dupree for mental health problems. The court held that “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.”

However, the Court of Appeals also decided to vacate the award for punitive damages against the physician, holding that the case’s circumstances do not hold up to the standard that “a defendant manifest evil or malicious conduct beyond any breach of professional duty,” due to  “a conscious and deliberate disregard of the interests of others,” established in a separate 1993 case. The court upheld the other awards.

, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.