A general practitioner who has a sexual relationship with a patient to whom he or she provides mental health treatment may be liable for medical malpractice, the Washington Court of Appeals held in Messenger v. Whitemarsh, V No. 80639-4-I (May 11, 2020)
In that case, the defendant doctor was the primary care provider for plaintiff family. Several years into their doctor-patient relationship, the wife and the doctor had a sexual relationship, which lasted nearly a year. When the husband learned about it, the wife ended the relationship with the doctor. The doctor committed suicide the same day. The family brought an action for medical malpractice against the doctor’s estate.
The wife produced evidence that she confided in the doctor regarding problems in her marriage, her feelings of depression, and that she was seeing a counselor. She also produced evidence that the doctor offered to prescribe her antidepressants and counseled her for depression. Her medical expert testified that the doctor breached the applicable standard of care by engaging in a sexual relationship with her after he had gained familiarity with the intimate details of her life, and exploited the confidence he earned.
Although all physicians are bound by an ethical rule prohibiting sexual relations with a patient, such relations are not necessarily a basis for a medical malpractice claim. Instead, a doctor is liable under the medical malpractice statute for damages caused by the health care the doctor provides. Washington construes “health care” to mean using professional skills in examining, diagnosing, treating, or caring for a patient for the management of illness and the preservation of mental and physical well- being of the patient.
Relying on the argument that a non- mental health provider’s sexual relationship with a patient does not fit the definition of “health care,” the doctor’s estate moved for summary judgment, arguing that his conduct does not provide a basis for a medical malpractice claim. The trial court granted the motion, dismissing the claims against the doctor. Plaintiffs appealed.
Whether a primary care doctor may be liable for malpractice because of harm caused by sexual relations with a patient is an issue that had not been decided in Washington. Therefore, the Court of Appeals looked to out-of-jurisdiction cases for guidance.
Courts have recognized that, for mental health care providers, sexual or erotic contact with a client could be malpractice because recognizing and addressing a client’s transference – emotionally inappropriate reactions to the mental health provider in the course of treatment – is a significant part of the provider’s training and practice. Such courts reason that the treatment tool of transference was wielded and mishandled. On the same premise, courts have allowed malpractice claims to go forward against defendant practitioners who, although not strictly mental health providers, provide some mental health services to the plaintiffs.
The Court of Appeals found this reasoning persuasive. It held that a primary care physician who provides mental health services to a patient may be liable for malpractice for injuries arising from the doctor’s sexual relationship with that patient. Such liability may attach when, in the course of such treatment, transference and a mishandling of that transference occurs, causing injuries as a result of health care under the statutory definition.
Finding plaintiffs had produced sufficient evidence to raise a genuine issue of material fact that the doctor had provided mental health services and that he had breached his professional duty to the wife when he engaged in a sexual relationship with her, the Court of Appeals reversed the summary judgment in favor of the doctor and remanded the case to the trial court for further proceedings.