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“Sexualization of a Physician-Patient Relationship” Can Be Fraud But Cannot Constitute Malpractice

Last week the Appellate Division Second Department upheld a lower court Nassau County judge who dismissed as untimely, a claim of fraudulent concealment of sexual misconduct against a psychiatrist. In 1982, at the age of 24, the plaintiff became a patient of the defendant psychiatrist. In 1993, the psychiatrist persuaded his patient that “if she had sex with him, it would improve her mental health, her marriage, and her libido.” Thereafter, they began a sexual relationship that continued until she terminated her relationship with him in November 2012. Suit was filed more than three years later in September 2016.

Any medical malpractice, negligence or intentional misconduct claims were time barred by the statute of limitations and only a fraud claim could possibly be timely. The court observed that, if filed within 2 1/2 years of the (sexual) treatment, the allegations, if proven, would constitute malpractice as a matter of law. However, the Court held that the complaint had not properly articulated a claim based on fraud because the claimed injuries of post traumatic stress disorder, divorce and depression, were not “separate from those caused by the malpractice.” 

The court explained that “victims of fraud may only recover their actual pecuniary (economic) loss - as such, mental health issues and a divorce are not compensable injuries for fraud.” The court further held that financial losses suffered as a result of the plaintiff's divorce from her husband could not reasonably be argued “were the direct result of Defendant's conduct, or, could not have been caused by some other circumstances.” Doe v. Ambrosino, 2018 WL 6071614

P.S. The Nassau County Supreme Court Justice denied the plaintiff's pre-suit motion to file her complaint under seal finding she could not sustain her burden of “good cause” under 22 NYCRR 216.1 stating that embarrassment and desire for privacy was not a compelling circumstance.

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts of 2011" and "Top New York Settlements of 2012." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He is a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!

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