May 19, 2009
DAVID THIERFELDER AND JOANNE THIERFELDER, H/W, APPELLANTS
IRWIN WOLFERT, M.D., AND MEDICAL CENTER AT GWYNEDD AND ABINGTON MEMORIAL HOSPITAL, APPELLEES
Appeal from the Order entered February 5, 2007 In the Court of Common Pleas of Montgomery County, Civil, No. 04-03111 (consolidated with 03-11978).
The opinion of the court was delivered by: Klein, J.
BEFORE: FORD ELLIOTT, P.J., and STEVENS, ORIE MELVIN, LALLY-GREEN, KLEIN, BOWES, PANELLA, DONOHUE and SHOGAN, JJ.
¶ 1 Joanne Thierfelder*fn1 (Wife/Joanne) appeals from an order sustaining preliminary objections and dismissing claims against Irwin Wolfert, M.D.*fn2
Wife's complaint essentially alleged that Dr. Wolfert acted negligently when he had a consensual sexual relationship with her for one year while she was his patient and being treated by him for anxiety and depression.*fn3 As a result of that affair, Wife claimed that she suffered and will continue to suffer significant psychological harm.*fn4 Because it is alleged that Dr. Wolfert, although a general practitioner, was rendering psychological care to Joanne, we believe that she has a cause of action and therefore reverse the grant of preliminary objections.
¶ 2 The trial court dismissed this case on preliminary objections, not at the summary judgment stage.*fn5 Therefore, all material facts set forth in the Thierfelders' complaint, as well as all reasonable inferences reasonably deduced therefrom, shall be admitted as true. Sullivan v. Chartwell Investment Partners, L.P., 873 A.2d 710, 714 (Pa. Super. 2005) (citations omitted). The following is what the Thierfelders pled, in part, in their third amended complaint:
(1) Both plaintiffs continued treating with defendants for a number of years during which time each plaintiff, in confidence, advised defendant Wolfert, of his/her respective medical conditions and problems.
(2) During the physician/patient relationship, plaintiff Joann Thierfelder treated with defendant Wolfert for depression and anxiety. Defendant Wolfert prescribed various medications to treat wife plaintiff's depression. [emphasis added]
(3) After wife plaintiff, who was still being treated by defendant Wolfert for depression, informed defendant Wolfert of her feelings, defendant Wolfert, during the spring of 2002, began a sexual relationship with wife plaintiff, his patient.
Plaintiffs' Third Amended Complaint, 2/4/2004, at 3. Regardless of whether these averments are actually true, they must be accepted as such for the purposes of deciding preliminary objections. Because the trial court failed to follow the proper standard of review when deciding the Defendants' preliminary objections, we must reverse.
¶ 3 Substantively, we believe that a patient does have a cause of action against either a psychiatrist or a general practitioner rendering psychological care, when during the course of treatment the physician has a sexual relationship with the patient that causes the patient's emotional or psychological symptoms to worsen. Therefore, it was error for the trial court to dismiss the Thierfelders' complaint at the preliminary objection phase.*fn6
Accordingly, we vacate the trial court's order dismissing the Thierfelders' amended complaint and remand this matter.
¶ 4 In coming to our conclusion today, we recognize that this situation may be different from a case where a general practitioner is rendering only medical care and is not treating the patient for anxiety or other psychological problems.*fn7 We express no opinion as to whether there is or is not a cause of action when none of the treatment of the general practitioner is for emotional problems.
¶ 5 However, when a general practitioner is also rendering psychological care, just like a psychiatrist, that general practitioner owes a duty of professional care to such a patient. The physician's actions coupled with his or her awareness of the patient's emotional issues (anxiety, depression and marital problems) carries with it a foreseeable and unreasonable risk of mental and/or emotional harm to the patient. Therefore, we reverse and remand. FACTS
¶ 6 The following facts were pled in the Thierfelders' third amended complaint. In 1997 the Thierfelders began treating with Dr. Wolfert, a family physician. Plaintiff's Third Amended Complaint, 1/30/2004, at 2. Among other ailments, Wife presented with and was treated by Dr. Wolfert for depression, anxiety and marital problems. Id. at 3. This treatment included prescribing Wife various anti-depressant medications. Id. During the course of treatment, both Husband and Wife revealed "details of [their] intimate relations" with each other to Dr. Wolfert so that he "could offer appropriate medical care and/or medication for plaintiffs." Id. According to Wife, during the course of her treatment with Dr. Wolfert she told Dr. Wolfert that he was her "hero," that he had "cured" her, and that she was in love with him. Id.
¶ 7 According to the pleadings, in the Spring of 2002, Dr. Wolfert and Wife began a sexual relationship. They would have sexual relations on a weekly basis in the doctor's medical office, local places, cars, and the doctor's parents' home. Wife ultimately ended the relationship in January 2003. Id. at 6. In March 2003, Wife confessed to Husband her past sexual relationship with Dr. Wolfert. Id.
¶ 8 The Thierfelders filed their first complaint*fn8 against Wolfert in 2003; after several amendments, they filed a third and final amended complaint (Third Amended Complaint) to which Defendants ultimately filed preliminary objections which were granted after oral argument.
¶ 9 The trial court based its decision on Long v. Ostroff, 854 A.2d 524 (Pa. Super. 2004). Specifically, the trial court granted the preliminary objections based on Long's holding that "a general practitioner's duty of care does not prohibit an extramarital affair with a patient's spouse." Trial Court Opinion, 5/4/2007, at 6, citing Long, supra at 526. Moreover, the trial court explicitly extended the Long holding to apply to the facts of the present case and preclude Wife's claim of professional malpractice against Dr. Wolfert. Trial Court Opinion, at 7.
¶ 10 Here the trial court also believed that although Wolfert's sexual relationship with Wife may have been unethical, it did not violate the law or represent a breach of any professional duty. Thus, the trial court held that "the law is clear: it is not a breach of the duty of care when a general practitioner engages in a sexual relationship with a patient." Id.
1. Medical Malpractice Claims
¶ 11 To establish a case of malpractice requires evidence that the physician acted negligently or unskillfully performed his duties which are devolved and incumbent upon him on account of his relations with his patients, or lacked the proper care and skill in the performance of a professional act. Keech v. Mead Johnson and Co., 580 A.2d 1374 (Pa. Super. 1990). In order to set forth a prima facie case of malpractice, a plaintiff must establish the essential elements of a negligence cause of action, namely: (1) a duty owed by the doctor to the patient; (2) a breach of that duty; (3) the breach of duty was the proximate cause, or substantial factor in bringing about the harm suffered by the patient; and (4) damages suffered by the patient resulting directly from that harm. Gregorio v. Zeluck, 678 A.2d 810 (Pa. Super. 1996) (emphasis added). In order to meet this burden, the plaintiff is required to provide expert testimony to establish, to a reasonable degree of medical certainty, that the acts of the physician deviated from acceptable medical standards, and that such deviation was the proximate cause of the harm suffered. Id.
(a) Physician's Duty of Care to Patient and Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000).
¶ 12 Here, the trial court concluded that a general practitioner, such as Dr. Wolfert, does not breach a duty to his patient by having a sexual affair with that patient while under the physician's care. The concept of duty has been discussed by our Supreme Court in Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000). The existence of a duty is a question of law for the court to decide. R.W. v. Manzek, 888 A.2d 740 (Pa. 2005). In Althaus, supra,the Supreme Court stated that the determination of whether a duty exists in such a case involves weighing the following factors:
(1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. 756 A.2d at 553.
¶ 13 It is undisputed that a healthcare provider's conduct serves a legitimate public interest. Because of a patient's often inferior knowledge about medicine and related conditions, a healthcare professional often has a position of superiority over his client. As such, it is very common that the patient is in a vulnerable position and as a result puts a high degree of trust in his or her doctor. In such relationships where the players are on unequal playing fields, it is even more incumbent upon our legal system to protect patients from the malfeasance of medical professionals when they become sexually involved with their trusting patients.*fn9
2. The Long Decision
¶ 14 In Long, the Plaintiffs, husband and wife, were both patients of the defendant doctor, a family physician. After finding out that Wife was having an extramarital affair with defendant, Husband filed a lawsuit against the doctor claiming that that the doctor was negligent because he failed to disclose to him at a scheduled office visit that he was having a sexual relationship with Wife. In his complaint, Husband alleged medical malpractice and loss of consortium, and he also sought punitive damages. Husband ultimately withdrew the consortium claim and the trial court struck the punitive damages claim; the case proceeded to discovery. Husband produced a board-certified psychiatrist who indicated that he would testify that Defendant doctor's actions "did not comport with the standards of a general physician." Id. at 526. Prior to trial, the Defendant doctor filed a motion to dismiss claiming that Husband failed to present any cognizable claims. The court ultimately ruled in favor of Defendant doctor on his motion, concluding that Husband "had not pleaded adequately any claim entitling him to relief." Id.
¶ 15 On appeal to this Court, the Husband in Long raised, among other issues, the query of whether the Commonwealth should recognize a cause of action in medical malpractice when a physician harms his patient [Husband] by having a sexual relationship with the patient's spouse [Wife] who also happens to be the physician's patient. Id. at 527.
¶ 16 In addition to finding that Husband had no cognizable cause of action in Long based upon Wife's extramarital affair with the defendant doctor, the trial court in Long also held that: (1) plaintiff's expert was not qualified under Medical Care Availability and Reduction of Error (MCARE) Act*fn10 to give his opinion because he (psychiatrist) did not practice in the defendant's (family physician) subspecialty nor was certified by the same or similar approved medical board; and (2) Husband failed to raise appropriate claims. Long v. Ostroff, 63 Pa. D. & C.4th 444, 448 (Phila. County 2003).
3. Application of Long to the present case
(a) Risk of Foreseeable Harm
¶ 17 To the extent that the holding of Long forecloses Mr. Thierfelder (Husband) from pursuing a medical malpractice claim against Dr. Wolfert in the present case, we do not believe that the holding in that case should be extended to automatically extinguish Wife's cause of action for malpractice against Dr. Wolfert.*fn11
¶ 18 We do so for the following reason. The Long Court did not hold that the patient having the affair was foreclosed from suing defendant doctor for malpractice; any such implication would be mere dicta. Rather, the central focus of the harm caused by Defendant's claimed negligence in Long was to that of the Husband, not the Wife. This is a critical distinction between Long and the facts of the present case for the reason that the risk of foreseeable harm is much greater in cases where the plaintiff is the actual person with whom the doctor is having an affair.*fn12 To put it simply, the allegations of the complaint are that Dr. Wolfert's actions in conducting the affair negatively affected Wife's treatment or condition.
(b) General Practitioner versus Specialists
¶ 19 We also note that Long significantly relies on Mazza v. Huffaker, 300 S.E. 2d 833, (N.C. App. 1983). In Mazza, the appellate court noted the significant duty of psychiatrists to maintain their patients' trust. Instantly, we believe that there should be no reason to distinguish general practitioners from psychiatrists when those general practitioners are treating their patients' psychological problems/conditions. In both cases the physicians need to maintain the same trust when rendering psychological care.
¶ 20Moreover, as it is alleged that Dr. Wolfert, a general practitioner, was rendering psychological care, it does not matter that he is not a specialized psychiatrist or psychologist. It is not appropriate to make a distinction between the two classes of physicians when they are rendering the same care. Therisk of harm is different when a physician is rendering psychological care rather than treating for some other symptom. If Wife had simply alleged that she had been treated by Dr. Wolfert for a non-emotional condition such as arthritis, we might not find that Wife would have a viable cause of action against him. It well could be that under those circumstances a subsequent, intervening sexual relationship would have had no effect on her arthritic condition -- thus establishing no causal connection for malpractice. Compare Mindt v. Winchester, 948 P.2d 334 (Ore. 1997) (where doctor's relationship with plaintiff/patient's wife did not affect plaintiff's treatment or condition for male infertility, there was no cause of action for medical malpractice); Odegard v. Finne, 500 N.W.2d 140 (Minn. 1993) (where defendant doctor was treating plaintiff-patient for ulcerative colitis and initiated sexual affair with her, medical malpractice claim was not cognizable).
¶ 21 However, in this case, it has been pled that Wife was being treated for emotional and psychological vulnerabilities. The allegation that the sexual relationship between her and her doctor intensified the nature of her condition compels our result today.
¶ 22 Therefore, taking the facts pled in the Thierfelders' complaint as true, Sullivan, supra, we hold that when a physician is providing specific treatment for psychological problems, and has a sexual relationship with the patient, if that sexual relationship directly causes the patient's psychological/emotional symptoms to worsen, that patient has potentially stated a cognizable cause of action for malpractice. These doctors need not be specialists in psychological care, but merely must be medically licensed to treat patients for such conditions. We note that in this case it is claimed that Dr. Wolfert was actively treating the patient for those issues, and not merely cognizant of them.*fn13 As such, the trial court erred in granting Defendants' preliminary objections. See Vulcan v. United of Omaha Life Ins. Co., 715 A.2d 1169 (Pa. Super. 1998) (only where law says with certainty that no recovery is possible under facts in amended complaint may preliminary objections in nature of demurrer be granted).
¶ 23 Order reversed. Case remanded for further proceedings. Jurisdiction relinquished.
¶ 24 LALLY-GREEN, J., files a Dissenting Opinion, in which Orie Melvin and Shogan, JJ., join.
DISSENTING OPINION BY LALLY-GREEN, J.:
¶ 1 I respectfully dissent. Initially, I note that as an intermediate appellate court, we should be reluctant to expand tort liability in the absence of clear guidance from our Supreme Court or the Legislature. See Excavation Techs. v. Columbia Gas Co., 936 A.2d 111 (Pa. Super. 2007), appeal granted, 950 A.2d 267 (Pa. 2008).
¶ 2 Our Supreme Court has not spoken directly on this important issue. I would predict, however, that the high Court would decline to impose tort liability based on its opinion in Physicians Ins. Co. v. Pistone, 726 A.2d 339 (Pa. 1999).
¶ 3 Pistone arose in the insurance context. In that case, the defendant physician treated a woman for gallstones. In the course of an examination, he "fondled her breasts, exposed his genitals and masturbated in front of her." Id. at 340. The question was whether the physician's acts were covered by a policy insuring against "injury arising out of the rendering of or failure to render professional health care services[.]" Id. The Court "granted allowance of appeal to determine when conduct constitutes the rendering of professional health care services." Id.
¶ 4 The Court ultimately adopted a narrow test that "looks to whether the act that caused the alleged harm is a medical skill associated with specialized training." Id. at 344. In doing so, the Court considered but expressly rejected two broader tests. First, the Court rejected a test that would look to whether there was a "substantial nexus" between the doctor's act and his role as a care provider. The Court also rejected a test that would consider whether the harmful act was "intertwined with and inseparable from" his role as a care provider. Id. The Court concluded that no coverage was available because the physician's assault did not constitute a "medical skill associated with specialized training." See id. at 344.
¶ 5 Pistone is instructive. Here, Appellant Joanne Thierfelder ("Wife") couches her negligence claim expressly in terms of medical malpractice. She claims that Dr. Wolfert's actions fell below the standard of care for general practitioners because he engaged in a consensual affair with her. In my view, these allegations do not meet the narrow test of Pistone. Wife does not claim that Dr. Wolfert proposed sexual relations as part of his treatment of her medical needs. Rather, she simply alleges that Dr. Wolfert abused his position of power and took advantage of her vulnerable state in order to carry on the affair with her. She also alleges that Dr. Wolfert distorted the doctor-patient relationship in order to satisfy his own needs, to the detriment of the needs of his patient.
¶ 6 While those allegations may conceivably fit within the "substantial nexus" test or the "inseparable and intertwined" test, our Supreme Court rejected both of those tests in Pistone. Following Pistone, I would hold that a consensual, non-medical sexual affair between doctor and patient does not constitute the rendering of a "medical skill associated with specialized training." See also Smith v. Friends Hosp., 928 A.2d 1072, 1076 (Pa. Super. 2007) ("a complaint sounds in medical malpractice where the conduct at issue constitutes an integral part of the process of rendering medical treatment, and where the complaint alleges that the injury caused to the patient occurred during, and as a direct result of the performance of professional services.") (internal quotations omitted). Thus, I would hold that Dr. Wolfert's actions, while unethical, do not constitute medical malpractice.
¶ 7 In the instant case, the Majority announces for the first time*fn14 that any physician, whether a specialist or not, has a duty to refrain from a sexual affair with his patient, so long as: (1) the physician is treating the patient for an "emotional condition" or "psychological problems"; and (2) the patient alleges that the affair worsened the psychological condition. Majority Opinion at 11-12. While I do not doubt the good intentions of this new and somewhat vaguely formulated expansion of tort liability, I believe that it runs contrary to guiding Supreme Court precedent.*fn15 The high Court is, of course, free to revisit its precedent and to expand the rule in its wisdom.*fn16 At present, however, I would affirm the trial court's decision to dismiss Wife's claims as a matter of law. Because the Majority takes a contrary course, I respectfully dissent.
¶ 8 ORIE MELVIN and SHOGAN, JJ., join.