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.