Scott Cooper May 22nd, 2009
Below is a link to the recent decision in Thierfelder v. Wolfert, ____ A.2d ____, (Pa. Super. May 19, 2009). The defendant was a family doctor treating Mrs. Thierfelder for anxiety and depression. Defendant doctor had consensual sex with Mrs. Thierfelder over a period of one year, while he was treating her. The sexual relationship began in the Spring of 2002, and was ended by Mrs. Thierfelder in January 2003. She confessed the relationship to her husband in March 2003. A Complaint was filed in 2003, and all the allegations were taken as true because of the way the case came to the Superior Court. The trial court found the defendant doctor did not have a duty to refrain from having sex with a patient.
In explaining the law to be applied in the medical malpractice claim against the defendant doctor, the court cited Keech v. Mead Johnson and Co., 580 A.2d 1374 (Pa. Super. 1990); and Gregorio v. Zeluck, 678 A.2d 810 (Pa. Super. 1996). Mrs. Thierfelder needed an expert to show, within a reasonable degree of medical certainty, that defendant doctor’s acts deviated from acceptable medical standards and that the deviation was the foreseeable cause of her harm. Further, the Court invoked Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000), to determine a duty existed, and found no distinction between a medical doctor in general practice who is treating a patient for emotional problems, from a psychiatrist. The Court was very concerned about the trust a patient puts in a physician providing psychological care. Further the Court stated, that allegations of a sexual relationship between the patient and the doctor intensified the nature of the patient’s condition, were necessary to reversal of the trial court’s dismissal.
Here our Pennsylvania Superior Court held, that it is medical malpractice for a physician who is treating a patient for psychological problems, to have a sexual relationship with that patient if the sexual relationship directly causes a worsening of the patient’s psychological/emotional symptoms.
Judge Lally-Green wrote a dissenting opinion which was joined by Judges Orie-Melvin and Shogan. She relied mainly on a Pennsylvania Supreme Court case, Physicians’ Ins. Co. v. Pistone, 726 A.2d 339 (Pa. 1999). In Pistone, a general practitioner made sexual advances and did acts while he was treating a patient for gallstones. In Pistone the Supreme Court found the doctor’s acts were not part of a “medical skill associated with specialized training.” Likewise, Judge Lally-Green would have held the consensual, non-medical sexual affair was not treatment in this case, and could not be classified as medical malpractice.
http://www.pacourts.us/OpPosting/Superior/out/E02003_09.pdf
D. Joseph Chapman
Attorney at Law
jchapman@schmidtkramer.com
Joe Chapman
Schmidt Kramer PC
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