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David Thierfelder and Joanne Thierfelder, H/W v. Irwin Wolfert

September 28, 2012


Appeal from the Order of the Superior Court entered on May 19, 2009 at 571 EDA 2007, affirming the Order of the Court of Common Pleas of Montgomery County entered on February 5, 2007 at No. 04-03111 c/w 03-11978. 978 A.2d 361 (Pa. Super. 2009)

The opinion of the court was delivered by: Mr. Chief Justice Castille


ARGUED: March 10, 2010


The question presented in this case is one of first impression for this Court: whether a medical general practitioner who provides incidental mental health treatment to a patient, with whom he then engages in a sexual affair, may be held to a particularized "specialist duty," applicable to mental health professionals, that prohibits consensual sexual contact with patients, such that the defendant general practitioner may be subject to medical malpractice liability in tort. For the following reasons, we decline to impose such a duty as a matter of Pennsylvania common law. Accordingly, we vacate and remand to the Superior Court for further disposition consistent with this Opinion, including consideration of whether any preserved issues remain that were not addressed as a result of the Superior Court's disposition.

This appeal arises from an order sustaining preliminary objections. In our review, we accept as true all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts. Stilp v. Commonwealth, 940 A.2d 1227, 1232 n.9 (Pa. 2007).

David Thierfelder ("appellee-husband") began receiving treatment from Irwin Wolfert, M.D. ("appellant"), a family practitioner, in October 1996. Mr. Thierfelder's wife Joanne Thierfelder ("appellee-wife") began treating with appellant about a month later. Both appellees saw appellant for several years, during which time appellant treated both for, inter alia, libido problems. Appellant's treatment of appellee-wife addressed various physical ailments but also symptoms of depression, anxiety, stress, attention deficit disorder, and other emotional problems. Eventually, appellee-wife came to believe that appellant had "cured" her problems; she told him that he was her "hero" and that she believed she was in love with him. In the spring of 2002, the two began a sexual relationship that persisted for almost one year. The encounters took place at the Medical Center at Gwynedd where appellant maintained an office, in an automobile, and at appellant's parents' residence. Appellee-wife became increasingly anxious and depressed; at one point, she attempted to break off the relationship, but appellant convinced her to continue until she finally ended the affair in January 2003.

In March 2003, appellee-wife told her husband about the sexual affair. In July, appellees together filed suit, along with a certificate of merit, naming as defendants appellant, the Medical Center at Gwynedd, and Abington Memorial Hospital.*fn1

Appellees' initial complaint alleged the following: During the course of appellant's treatment of appellee-wife for depression and anxiety, appellee-wife expressed that she believed she was in love with him; the two thereafter began a sexual relationship, during which appellee-wife became increasingly anxious and depressed; and as the affair continued, appellee-wife became obsessive and dependent on appellant before finally ending the relationship and telling her husband. The complaint further alleged that appellant was reckless, negligent, and careless and deviated from the "standard of care for physicians under the circumstances" by: instituting and continuing a sexual relationship with his patient; failing to end the sexual relationship; failing to insist that appellee-wife find another physician to treat her for her medical and mental/emotional problems; placing his own physical needs and desires before the psychological welfare of his patients; misusing confidential information given to him by both appellees; violating the fiduciary duty he owed to appellees; interfering with appellees' marriage; and violating the standards of ethics for physicians. The complaint asserted that as a result of appellant's conduct, appellee-wife suffered deterioration of her psychological condition, severe depression, mental anguish, physical pain, emotional damage and harm, and loss of the opportunity to obtain relief from her psychological condition. Appellees also asserted both intentional and negligent infliction of emotional distress and willful, wanton, and reckless conduct on appellant's part; appellees sought "exemplary damages" of five million dollars. Complaint, 7/2/03.

Appellees filed an amended complaint shortly thereafter, which contained no substantive changes, but separated the allegations in the original complaint into four untitled, enumerated sections. Amended Complaint, 8/7/03. Appellant responded by filing preliminary objections asserting that appellees had failed to state causes of action for negligent and intentional infliction of emotional distress; willfulness, wantonness, and recklessness; tortious interference with a marital contract; breach of fiduciary duty; and breach of physician-patient confidentiality. Appellant also argued that appellees failed to state a cause of action for medical negligence because their allegations stated only that the sexual relationship arose after appellant's "rendition of medical care" to appellee-wife, as demonstrated by her statement that appellant had "cured" her; according to appellant, a cause of action for medical negligence must assert sufficient facts that the harm claimed arose "from" (and not "after") the rendition of medical care. Appellant's Preliminary Objections, 8/26/03.

Next, appellees filed a second amended complaint, which provided titles for the enumerated sections; relevant to this appeal, the first two sections were now titled "Negligence" and "Medical Malpractice." In the "Negligence" section, appellees repeated their original allegations to the effect that appellant was reckless, negligent, and careless and deviated from the "standard of care for physicians under the circumstances" by: instituting and continuing a sexual relationship with his patient; failing to end the sexual relationship; failing to insist that appellee-wife find another physician to treat her; placing his own physical needs and desires before the psychological welfare of his patients; misusing confidential information; violating a fiduciary duty; interfering with appellees' marriage; and violating the standards of ethics for physicians. The complaint asserted that as a result of appellant's conduct, appellee-wife suffered deterioration of her psychological condition, severe depression, mental anguish, physical pain, emotional damage and harm, and loss of the opportunity to obtain relief from her psychological condition. The "Medical Malpractice" section of the second amended complaint pertained to appellee-wife only, and alleged that appellant "deviated from the standard of care for physicians under the circumstances" by: misusing drugs during the course of her treatment, breaching patient confidentiality, failing to treat her appropriately, practicing therapeutic techniques beyond the scope of his competence, terminating her treatment without appropriate follow-up or referral, failing to warn her that "certain treatment has been harmful," failing to properly recognize, diagnose, and treat the "transference" that befell her,*fn2 and failing to timely refer her to another physician. Second Amended Complaint, 9/17/03.

Appellant responded with additional preliminary objections reiterating that his sexual relationship with appellee-wife "commenced outside of the course and scope of the rendering of medical services," and thus, appellees had not established a cause of action for either ordinary or medical negligence. Appellant also referred to a recent trial court decision in which the Honorable Sandra Mazer Moss of the Court of Common Pleas of Philadelphia County held that, lacking a mental health therapist-patient relationship, sexual relations between a physician and a patient's estranged wife did not constitute medical malpractice. Appellant's Preliminary Objections to Second Amended Complaint, 10/15/03 (citing Long v. Ostroff, Pa. D. & C. 4th 444 (Phila. Com. Pl. 2003)). Appellees answered the preliminary objections, stating that their certificate of merit expressed that appellant's conduct departed from acceptable medical standards and was the cause of appellees' harm; appellees also argued that contrary to appellant's assertions, a mental health therapist-patient relationship did arise and develop between appellant and appellee-wife. Appellees' Answer to Appellant's Preliminary Objections, 10/31/03. The court overruled appellant's preliminary objections, but ordered appellees to file another amended complaint pleading their asserted material facts with greater specificity. Trial Ct. Order, 1/16/04.

Appellees filed a third and final amended complaint in February 2004. In the section titled "Negligence," appellees set forth a detailed account of the manner in which the affair between appellant and appellee-wife began and how appellee-wife grew increasingly more anxiety-ridden, obsessive, and dependent as the relationship progressed. Appellees also alleged that appellant made attempts to convince appellee-wife to continue the relationship when she attempted to end it. Appellees also added allegations that appellant made certain statements to appellee-wife that worsened her already fragile emotional state over the affair. In the "Medical Malpractice" section, appellees listed the same allegations set forth in the previous complaint. Third Amended Complaint, 2/4/04.

In his answer, appellant generally denied appellees' allegations and specifically denied that he (or his conduct) was the direct or proximate cause of appellees' alleged injuries. Answer [of Appellant] to [Appellees'] Third Amended Complaint with New Matter, 2/9/04, at 2-4. At this point, due to an evident technical error in filing the original complaint, which was docketed with No. 03-11978, appellees re-filed an identical action later in February 2004; this action was docketed with No. 04-03111.

In March 2004, appellant filed preliminary objections in the 04-03111 matter asserting, inter alia, that appellees' complaint failed to state a cause of action for either ordinary negligence or medical malpractice. Appellant argued that appellees' complaint did not set forth the requisite factual basis to prove that his rendition of professional medical services to appellees caused them cognizable injury or was an "unwarranted departure from generally accepted standards of medical care." Moreover, according to appellant, "the alleged sexual conduct at issue can't possibly constitute medical malpractice under Pennsylvania law where the therapist-patient relationship is lacking." Appellant cited Judge Moss's decision in Long v. Ostroff for the proposition that, in the absence of a therapist-patient relationship, a family physician's sexual conduct with a patient's wife did not constitute medical malpractice under Pennsylvania law. As for appellees' allegations sounding in ordinary negligence, appellant countered that "the mere happening of a consensual sexual relationship between adults, outside of the context of marriage," did not give rise to a duty of care in either participant to the other participant "with respect to the commencement, happening of or termination" of the relationship. Appellant's Preliminary Objections and Memorandum in Support, 3/15/04, at 6.

The trial court initially overruled the preliminary objections and litigation proceeded, but in June 2004, the Superior Court affirmed Judge Moss's disposition in Long. Long v. Ostroff, 854 A.2d 524 (Pa. Super. 2004). Based on that decision, appellant sought reconsideration of the trial court's decision to overrule his preliminary objections.

In Long, a general practitioner who treated both the plaintiff and the plaintiff's wife engaged in a sexual affair with the wife, which the doctor did not disclose to the plaintiff, even when the plaintiff complained of anxiety due to marital problems and sought a referral to a mental health professional. The plaintiff sued, alleging medical malpractice. The doctor filed a motion for summary judgment, which was denied, and then a motion to dismiss, which was granted, and the patient appealed.

The Long Superior Court panel construed the trial court's grant of the defendant's motion to dismiss as a grant of summary judgment and noted that the "novel" legal issue presented was whether a claim for medical malpractice is cognizable, as a matter of law, premised upon a physician having an affair with his patient's wife. The panel concluded that a general practitioner's duty of care does not prohibit an extramarital affair with a patient's spouse. In so holding, the panel noted that, in arguing that the doctor owed him a duty of care not to engage in a sexual relationship with his wife, the plaintiff relied "solely and heavily" upon a North Carolina case, Mazza v. Huffaker, 300 S.E.2d 833 (N.C. Ct. App. 1983). The panel noted that Mazza was not binding in Pennsylvania and that, in any event, it was distinguishable on two grounds. First, the panel distinguished Mazza because it spoke to a supposed "special duty" owed by psychiatrists to their patients, which the panel said "does not extend to general practitioners." Second, the Long panel noted that Mazza had to be understood in light of peculiarities then existing in North Carolina tort law (involving recognized torts for criminal conversation and alienation of affection), whereas Pennsylvania had abolished such tort claims. Long, 854 A.2d at 528. This Court denied allocatur. Long v. Ostroff, 871 A.2d 192 (Pa. 2005).

In his motion to reconsider, appellant herein relied upon Long's discussion of Mazza to argue that, because he was a general practitioner and not a mental health professional, no "therapist-patient relationship" arose between himself and appellee-wife that could trigger a mental health specialist's duty to avoid a sexual relationship. Thus, appellant argued, appellees' medical malpractice allegations were legally unsustainable. Appellant pointed particularly to the Long opinion's distinction between unethical and tortious conduct by a medical professional: "Simply put, unethical conduct does not provide the foundation for a cause of action sounding in medical negligence." Appellant's Memorandum of Law in Support of Motion to Reconsider, 12/30/04, at 3. Appellant emphasized that appellees "have not alleged that [appellant's] medical diagnoses of [appellees] were in any way negligent," and also that the consensual sexual relationship between himself and appellee-wife was not connected to the manner in which he rendered professional medical care. Id. at 5-6.

Appellees responded that Long should be limited to its facts and read narrowly as holding only that a doctor has no duty to disclose a sexual relationship with a patient's spouse to the patient, even if both spouses are patients of the doctor. According to appellees, Long should not be read as supporting the premise that a patient may not pursue a cause of action in malpractice against a medical doctor if the doctor (a non-mental health professional) has sexual contact with the patient. Appellees also asserted factual distinctions. Appellees' Answer to Motion to Reconsider, 1/20/05, at 1-2, 4.

The trial court granted reconsideration in January 2005; after oral arguments focusing on Long, the court vacated its previous order, sustained in part appellant's preliminary objections, and dismissed with prejudice appellees' claims of negligence, medical malpractice, fraudulent misrepresentation, negligent infliction of emotional distress, willful, wanton, and reckless behavior, and loss of consortium. Trial Ct. Order, 5/5/05.*fn3

Appellees' appeal of the May 5, 2005 reconsideration order was quashed by the Superior Court as interlocutory in August 2005. After subsequent litigation and discovery, including consolidation with a previously separate, parallel matter, appellees stipulated to dismiss their claims for battery and intentional infliction of emotional distress, a stipulation the trial court approved. The stipulation allowed appellees to appeal the trial court's now-final dismissal of their remaining claims, primarily appelleewife's claims based on allegations of ordinary negligence, negligent infliction of emotional distress, medical malpractice, fraudulent misrepresentation, and willful, wanton, and reckless behavior; and appellee-husband's derivative loss of consortium claim.*fn4 Appellees subsequently perfected their appeal to the Superior Court and the trial court issued a Pa.R.A.P. 1925(a) opinion.

In its opinion, the trial court asserted that it had not erred in sustaining appellant's preliminary objections and dismissing appellees' claims of ordinary negligence, negligent infliction of emotional distress, and medical malpractice. The court emphasized Long's distinction of the Mazza case on the ground that it involved the duty of a psychiatrist, and not that of a general practitioner. The trial court stated that even though appellee-wife here was herself a patient and not just a patient's spouse, as in Long, the reasoning in Long nonetheless "can be applied to the patient that consented to the sexual relationship" with the doctor. The trial court concluded that appellant's conduct may have been unethical, but "it [was] not a breach of the duty of care when a general practitioner engages in a sexual relationship with a patient." Trial Ct. Op., 5/4/07, at 7. The trial court did not articulate any substantive distinction between appellees' medical malpractice claim, to which a discussion of Long was more directly relevant, and appellees' additional remaining claims sounding primarily in allegations of ordinary negligence or professional negligence aside from the instance of the sexual relationship between appellant and appellee-wife.

On appeal to the Superior Court, appellees raised five issues, all pertaining to the trial court's dismissal of their medical malpractice claim:

I - Did the court below err in dismissing Appellants' medical malpractice action on the pleadings, while disregarding Appellants' uncontradicted expert medical testimony that described Appellee's duty, breach of that duty and deviation from the standard of care in instituting a sexual relationship with Appellant wife during the physician-patient relationship?

II - Did the court below err in determining that Long v. Ostroff, 2004 Pa. Super. 240, cert. denied 582 Pa. 700 (2005), barred wife Appellant's claim against Appellee, as a matter of law, when Appellee instituted a sexual liaison with wife Appellant while Appellee was her treating physician, when that issue was never before the Court in Long?

III - Must this Honorable Court grant great deference to the findings and opinions of the Commonwealth of Pennsylvania Bureau of Professional and Occupational Affairs and the Commonwealth Court of Pennsylvania which have ruled that physicians committed unprofessional conduct and deviated from the standard of practice by engaging in a sexual relationship with a patient?

IV - Did the court below err in dismissing Appellant wife's medical malpractice action against Appellee without first conducting the analysis required by Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000)?

V - Should this Honorable Court reconsider its decision in Long v. Ostroff in light of the Althaus v. Cohen analysis, and allow Appellant husband's action to proceed?

Appellees' Brief to Superior Court at 3. As phrased by appellees, the "essence" of the appeal was that the trial court "improperly deprived [appellees], especially [appellee-wife], of the opportunity to develop a cause of action for medical malpractice against [appellant] arising out of [appellant's] institution of a sexual relationship during [appellant's] medical treatment of [appellee-wife] for, inter alia, depression and anxiety arising from her marital relationship, while [appellant] was prescribing antidepressant medication for [appellee-wife]." Id. at 8. In response, appellant argued that his consensual sexual relationship with appellee-wife outside the scope of the medical care he provided simply could not support an action in medical malpractice. Appellant added that although the dismissal of most of appellees' other claims was either via stipulation or not appealed, rejection of appellee-wife's malpractice claims against him would still leave a residual ordinary negligence claim.*fn5 Appellant also assailed appellees' "continued reliance" on their expert's opinion as irrelevant to the threshold legal question of whether a legal duty exists respecting the medical malpractice claim. Appellant's Brief to Superior Court at 9-12.

A divided three-judge panel of the Superior Court affirmed in an unpublished decision.*fn6 The lead memorandum found that appellant's actions did not implicate medical treatment so as to establish a prima facie case of professional negligence. The memorandum cited Physicians Insurance Co. v. Pistone, 726 A.2d 339 (Pa. 1999), for the proposition that a viable claim of medical negligence requires that the malpractice occur in the course of the defendant's provision of actual medical care or services.*fn7

The memorandum concluded that there was no allegation in appellees' pleadings that appellant's sexual contact with appellee-wife was presented or accepted as part of a course of medical care, and thus appellees had not established a prima facie case of medical malpractice. Super. Ct. Op., 8/6/08, at 4-9.

In dissent, Judge Klein opined that, although appellant was a general practitioner, he had been treating appellee-wife for psychological and emotional problems when the sexual relationship began. In Judge Klein's view, appellant was aware of appellee-wife's vulnerability and should have known that sexual involvement with her carried a foreseeable and unreasonable risk of increased or enhanced mental and emotional difficulties arising directly from the affair itself. Judge Klein added that because general practitioners now often provide some degree of mental or emotional care for their patients, including prescription of medications (which does not appear to be in dispute), there is no longer a basis for maintaining a distinction between general practitioners and mental health professionals in a case like this.

The Superior Court granted reargument en banc, withdrew the original panel decision, and, in a new 6 to 3 decision, reversed the trial court's decision, and remanded. Thierfelder v. Wolfert, 978 A.2d 361 (Pa. Super. 2009) (en banc). The majority opinion by Judge Klein held 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." Id. at 364. Analytically, the majority quoted the factors this Court articulated in Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000), which govern common law determinations of tort duty; these will be discussed at length infra. The majority noted that healthcare providers "serve[] a legitimate public interest," but then opined that, given the doctor's superior knowledge and experience, "the players are on unequal playing fields, [and thus] it is even more incumbent upon our legal system to protect patients from malfeasance of medical professionals when they become sexually involved with their trusting patients." Thierfelder, 978 A.2d at 366. The majority distinguished Long because appellee-wife in this case was the actual patient involved in the sexual relationship and was receiving some degree of care from appellant for mental and emotional issues and was not, as in Long, the patient's spouse. In the majority's view, 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." Id. at 367.

Finally, in a subsection of the opinion entitled "General Practitioner versus Specialists," the majority stated: "we believe that there is 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." Id. at 367-68 (emphasis in original). The majority then concluded its duty analysis as follows:

[A]s 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. The risk of harm is different when a physician is rendering psychological care rather than treating for some other symptom. If [appellee-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 [appellee-wife] would have a viable cause of action against him. It well could be that under ...

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