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In New York, it is medical malpractice for a doctor to have an affair with his patient

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The New York Court of Appeals (the highest court in New York) ruled today that a familiy doctor committed medical malpractice when he had an affair with one of his patients. (Dupree v. Giugliano)

Is it possible that the Virginia Supreme Court could also decide that having an affair with a patient was malpractice? To be held for hurting a patient, a doctor or other health care provider must have "breached the standard of care" of a doctor in a similar practice -- in this case, a family doctor. I doubt that anyone would think that it was within the standard of care to have a nine-month-long affair with a patient. However, one of the questions raised in the trial was whether the affair was even part of the medical treatment of the doctor. For instance, he was not the patient's psychiatrist and was not in a therapeutic/counseling relationship with her. The jury found against the doctor on that issue and the higher court agreed.

New York law is different from the law in Virginia, however. The jury also found that the patient was 25% at fault for her own injury, so the amount of the verdict in her favor was reduced by 25%. (The punitive damages portion of the award was also removed by the higher court.) That is, New York law allows for the jury to compare the fault of the parties and if the plaintiff (the patient in this case) is partly at fault, the jury decides the percentage of fault and the whole verdict is reduced by that amount. That is called "comparative negligence."

Virginia does not have comparative negligence. Here, if the injured person is negligent to any degree and that negligence contributes to her injury, she loses. In Virginia, the injured person must always be 100% careful or she cannot be repaid for her losses, no matter how serious they are.

So, I'm not sure what a jury in Virginia would do in a case like this. It could very well find the patient was somewhat at faut because the evidence was that the affair lasted so long and she participated in seeking out sexual encounters with the doctor.

But, I think a doctor's having sex with a patient is not within the standard  of care. I'm just not sure that in Virginia the patient would win at trial.

Category: Injuries and Wrongful Death

Sandra Rohrstaff
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Virginia Child Injury and Elder Abuse Attorney

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