When Sex is Malpractice

Kristin Dupree went to her family physician, James Giugliano, to seek help with issues relating to depression, panic attacks, and troubles in her marriage. Dr. Giugliano appeared to treat his patient as any good doctor would do. He referred her to an outside therapist and provided talk therapy to help her emotionally, and although he was not a psychiatrist, he prescribed anti-depressants. Then he entered into a nine-month, consensual sexual relationship with her.

When the affair ended, Dupree confessed to her husband, and the two got divorced.  Dupree sued Dr. Giugliano for medical malpractice, and a New York jury awarded her over $400,000 in damages (a quarter of the damages were reduced because New York has a comparative fault statute).

Is a sexual relationship between doctor and patient malpractice?  The appellate court thought so, in a three to one decision.  Once Dr. Giugliano started providing psychiatric medication and talk therapy, he acted as a mental health provider for whom having sex with patients is considered medical malpractice, largely because of the psychological harm it can cause to the patient.  The court noted that even though she discussed the affair with her therapist, Ms. Dupree did not disclose that it was with Dr. Giugliano.  The court held that this was evidence that Giugliano’s actions negatively affected her treatment.

The case is currently on appeal to New York’s highest court, and as of this writing, oral argument is set for sometime in October. This unfortunate case definitely shows that medical malpractice harm to a victim does not have to come in physical form.  Emotional and psychological damage is real and painful.

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