Kristin Dupree sought treatment from James Giugliano. a family medicine specialist for, among other things, depression and panic attacks, starting in January 2000. He prescribed medication and also engaged in “talk therapy” with Dupree. He referred her to a psychiatrist, but she did not immediately act on the referral. In June 2001, while she was still a patient of Giugliano's, the two of them entered into a consensual sexual relationship, which lasted for approximately nine months. The affair ended by mutual consent. Dupree would later admit that the affair had not been part of her therapy.
She had, at some point, entered into therapy with the psychiatrist that Giugliano recommended, but did not tell him about the affair. Dupree did later tell her husband about the affair, and her marriage ended in divorce. Dupree alleged she suffered psychological injury as a result of the affair.
Dupree filed suit against Giugliano for medical malpractice. The suit went to trial and she received a verdict for civil damages of $334,000; the jury found that Giugliano was at fault for 75 percent of the damages. The jury also awarded Dupree $166,000 in punitive damages, for a total award of $416,500. Giugliano appealed the verdict of the trial court.
The Appellate Division noted that the rule in New York is that a physician may only be liable for medical malpractice for acts or omissions that occur within the course of medical practice. It noted that there is an exception to this rule for mental health therapists: A mental health therapist can be held liable for engaging in a sexual relationship with a patient, whether or not the sexual relationship was part of the treatment regimen. In this case, although Giugliano was not technically or certified as a mental health therapist, since he engaged in “talk therapy,” a form of mental health therapy, he assumed the role of mental health therapist for the purposes of medical malpractice liability.
Accordingly, the court affirmed the jury verdict in Dupree's favor.
Sexual relationships between mental health practitioners and their patients are particularly problematic. The relationship between mental health practitioner and patient is not an equal relationship. The practitioner is dominant by virtue of role, education, and status, and potentially capable of exerting undue influence on the patient. Thus, it is widely accepted that a sexual relationship between a mental health clinician and his/her patient is inappropriate because it cannot truly be consensual. Indeed, this has been the basis for successful civil lawsuits as well as license revocations. While transference and countertransference may be regularly encountered in therapy, the clinician must manage these phenomena carefully.
The American Medical Association has stated:
If a physician has reason to believe that nonsexual contact with a patient may be perceived as or may lead to sexual contact, then he or she should avoid the nonsexual contact. At a minimum, a physician's ethical duties include terminating the physician-patient relationship before initiating a dating, romantic, or sexual relationship with a patient. Sexual or romantic relationships between a physician and a former patient may be unduly influenced by the previous physician-patient relationship. Sexual or romantic relationships with former patients are unethical if the physician uses or exploits trust, knowledge, emotions, or influence derived from the previous professional relationship.
American Medical Association, Council on Ethical and Judicial Affairs, “Opinion 8.14—Sexual Misconduct in the Practice of Medicine” is available at .
This case reinforces the need for careful consideration of boundary issues when treating patients with mental health issues to avoid any impropriety. Even if the therapist believes that there is no mental health practitioner-patient relationship, there still may be such a relationship for the purposes of malpractice. Many states have specific guidelines regarding the engaging in social relationships with patients, including the length of time that is required for a “cooling off” period after the termination of the provider-patient relationship. The failure to follow any such state guidelines or the guidelines of the AMA can lead to liability.
Dupree v. Giugliano,
2011 NY Slip Op. 06471,
87 A. D. 3d 975 (NY App. Div. 2011)
John C. West, J.D., M.H.A., is a senior health care consultant with AIG. This column constitutes general advice not legal advice. Readers should consult with counsel for legal concerns. For questions or comments contact .