A Long Island judge has upheld a $416,500 jury award in a malpractice action against a doctor accused of sleeping with a patient he treated for depression.

However, in an issue of first impression for “such facts in such context,” Suffolk County Supreme Court Justice William B. Rebolini ( See Profile) declined to strike the jury’s 25 percent apportionment of responsibility to the plaintiff under the doctrine of comparative negligence.

“[G]iven the plaintiff’s age and experience and notwithstanding the defendant’s professional status and the nature of the parties’ relationship at its inception (doctor/patient), it remained that the plaintiff was possessed of a will of her own and was not utterly bound by defendant’s influence or choices but, rather, free to exercise her judgment and to engage in such conduct as she chose,” Justice Rebolini held in Dupree v. Giugliano, 19557/2004.

The Suffolk Supreme Court decision will be published Wednesday.

Plaintiff Kristin Kahkonen Dupree, a former model with the Elite Model Management agency, filed the medical malpractice action in 2004. She alleged that she first visited Southampton family medicine practitioner James E. Giugliano for anxiety and depression in January 2000, shortly after her infant daughter was diagnosed with cerebral palsy.

Dr. Giugliano initiated a treatment of counseling and medication, including Paxil and Wellbutrin.

From May 2001 through March 2002, Ms. Dupree and Dr. Giugliano engaged in a sexual relationship, according to her complaint.

Ms. Dupree claimed that the affair led to the deterioration of both her mental health and her marriage: Her husband filed for divorce, her custody of her daughter was reduced to part-time and she experienced “severe mental distress, anxiety and depression.”

In 2004, Ms. Dupree filed the present medical malpractice action, alleging that Dr. Giugliano violated his duty of care by engaging in the sexual relationship while treating her for depression. She was unable to exercise independent judgment, she asserted, because she was experiencing eroticized transference, i.e., the unconscious shift of sexual longings to her therapist.

Dr. Giugliano contended that the case was really one for seduction or alienation of affection, which are not actionable in New York, disguised as one for malpractice. He is a family practitioner, not a psychologist or psychiatrist; his sexual relationship with Ms. Dupree was not malpractice, but rather merely a brief affair.

Following a nine-day trial in October and November 2008, a jury awarded Ms. Dupree $500,000, including $334,000 in general and special damages and $166,000 in punitive damages.

The general and special damages were reduced by 25 percent because of Ms. Dupree’s contributory negligence, reducing the total award to $416,500.

Both sides filed post-verdict motions challenging multiple aspects of the trial and the award.

In a decision Wednesday, Justice Rebolini denied both sides’ motions in their entirety.

The plaintiff’s central contention was that the court erred in charging the jurors on comparative negligence, i.e., in allowing them to consider whether Ms. Dupree’s own culpable conduct may have contributed to any injuries and therefore serve to reduce her damages.

Like a child or an employee ordered by her boss to act, her attorneys argued, Ms. Dupree was not capable of acting voluntarily because of her psychological disability.

Justice Rebolini disagreed.

“It was and remains the Court’s determination that it correctly charged the jury in this particular context by charging comparative negligence,” he wrote. “Plaintiff was not denuded, by virtue of the physician patient relationship, of an ability to control her own conduct and to exercise her own adult judgment given the extended period of and the palpably apparent consequences of the conduct in question herein, an affair where both parties were married to others.”

The judge also denied Ms. Dupree’s motion to add the $154,000 expense of her divorce to the damages, finding the jury was free to reject her proof of damages.

The court then addressed the defense’s assertion that Ms. Dupree’s claim was, in reality, one for either seduction or alienation of affection, both of which were abolished by the New York Civil Rights Law.

Justice Rebolini again disagreed.

Unlike the claims in the “superficially” similar cases cited by the defense, “[i]n the instant action . . . the claim is medical malpractice and the proof at trial demonstrated that the treatment administered to the plaintiff by defendant, a physician and psychiatrist, included narcotics and other drugs with effects which the jury could reasonably conclude were directly involved in plaintiff’s medical treatment and could have adversely impacted plaintiff.”

Reached for comment, Dr. Giugliano’s attorney, Russell Corker of Shayne, Dachs, Corker, Sauer & Dachs in Mineola, said, “Obviously we’re appealing.”

The court’s central error, Mr. Corker said, was allowing the case to proceed under medical malpractice. It also erred in characterizing Dr. Giugliano as a psychiatrist.

“If my guy was a psychologist or psychiatrist, the plaintiff would have a better claim,” Mr. Corker said. “He is not, has not been and will never be a psychologist or a psychiatrist.”

Ms. Dupree was represented by Kenneth Cooperstein, a Centerport solo-practitioner working of counsel on this case for Smithtown’s Berler & Tanenbaum.

Mr. Cooperstein said the doctor’s self-characterization as a “family practitioner” was irrelevant, as any licensed doctor may perform any medical treatment from heart surgery to, as here, treatment for depression.

He also added that he does not anticipate his client appealing.

“I think there are errors in [the decision], but I don’t think it makes sense to appeal,” Mr. Cooperstein said. “We might get stuck with a new trial.”

Mark.Fass@incisivemedia.com