In a case of first impression, the state Supreme Court has refused to extend a “specialist duty,” which prohibits mental health practitioners from having consensual sex with their patients and makes those who do susceptible to medical malpractice suits, to general practitioners who provide “incidental mental health treatment.”

In Thierfelder v. Wolfert, the high court ruled 5-1 — suspended Justice Joan Orie Melvin did not participate in the decision — to reverse a divided May 2009 Superior Court ruling that both general practitioners and psychiatrists “need to maintain the same trust when rendering psychological care.”

Chief Justice Ronald D. Castille, writing for the majority, said that even what might constitute an ethical violation does not necessarily amount to a tortious violation.

“The question is not whether this court condones appellant’s actions, nor even whether his actions amounted to a violation of medical ethics,” Castille said. “We hold here only that, as a general practitioner, appellant was under no specific or ‘heightened’ duty in tort to refrain from sexual relations with his patient under these circumstances.”

Castille was joined by Justices Max Baer, Thomas G. Saylor, J. Michael Eakin and Seamus P. McCaffery.

Justice Debra Todd dissented, saying the majority’s view is “undermined by the fact that, in Pennsylvania, a general practitioner is licensed to practice mental health or psychiatric services, and to diagnose and provide psychiatric treatment, all without any residency or board certification in psychiatry or psychology.”

“In my view, when a general practitioner undertakes to render treatment to a patient for mental health disorders, which the physician is legally permitted to provide, it is not unreasonable for that physician to understand and know the basic consequences of such care,” Todd said.

But Castille replied in the majority opinion that the court’s holding in Thierfelder “does not forever bar the potential for finding a duty of care when a doctor who is not a mental health specialist undertakes mental health treatment with a patient and then engages in sexual relations with that patient.”

“Rather, the question accepted for review, which our deliberations have revealed is not as simple as it might initially seem, is whether to extend a per se duty that would apply to mental health specialists to general practitioners, in order to support a claim for money damages,” Castille said.

In Thierfelder, according to court papers, Joanne Thierfelder and her husband, David Thierfelder, sued Irwin Wolfert, the couple’s family physician, in 2003, alleging Wolfert began an affair with Joanne Thierfelder while treating her for anxiety, depression and marital problems. According to the Thierfelders’ complaint, the doctor’s actions — he was also prescribing the patient anti-depression medications — worsened Joanne Thierfelder’s psychological condition.

Based on those allegations, the couple brought negligence, medical malpractice, loss of consortium and other claims against the doctor, according to court documents.

In May 2009, according to court papers, a 6-3 majority of the Superior Court overturned a trial court judge who had dismissed the case on preliminary objections, basing the decision on the Superior Court’s 2004 decision in Long v. Ostroff.

In Long, a panel of the court led by then-Judge Richard B. Klein held that “a general practitioner’s duty of care does not prohibit an extramarital affair with a patient’s spouse.”

Though the panel’s ruling in Long prevents a spouse from bringing a medical malpractice claim against a doctor having an affair with the spouse’s partner, it did not do the same for Joanne Thierfelder’s claims, Klein said. The “critical distinction” between the cases was that there is a much greater risk of foreseeable harm when the plaintiff is the person with whom the doctor is having the affair, he said.

Klein supported the distinction by weighing the factors outlined by the state Supreme Court in its 2000 decision in Althaus v. Cohen to determine whether Wolfert as a general practitioner owed Joanne Thierfelder a duty.

“Because of a patient’s often inferior knowledge about medicine and related conditions, a health care professional often has a position of superiority over his client,” Klein wrote. “As such, it is very common that the patient is in a vulnerable position and as a result puts a high degree of trust in his or her doctor. In such relationships where the players are on unequal playing fields, it is even more incumbent upon our legal system to protect patients from the malfeasance of medical professionals when they become sexually involved with their trusting patients.”

In considering the first factor set forth in Althaus — the relationship between the parties — Castille noted that courts have recognized that mental health professionals should not be allowed to “prey upon their patients’ hopes, fears, feelings and personal issues, which are the very basis of the therapist-patient relationship.”

“But, the relationship between the parties is not the same where the mental health treatment is incidental and rendered by a general practitioner; in such circumstances, the first Althaus factor weighs against holding general practitioners to the specialized duty that prohibits mental health professionals from engaging in sexual relations with their patients,” Castille said. “As both parties recognize, it has become increasingly common for primary or general care physicians to advise patients on relatively common matters of emotional or mental import, like stress or depression, and also to prescribe widely used medications for such conditions.”

As for the second Althaus factor — the social utility of the doctor’s conduct — Castille said there is a difference between general practitioners who provide occasional treatment of common mental and emotional issues and mental health professionals who employ transference — a phenomenon in which patients project onto their therapists feelings, attitudes and attributes that actually belong to figures from their past and their therapists respond accordingly.

“Imposing the same absolute duty to avoid sexual contact with patients upon general practitioners as would be imposed upon mental health professionals employing transference necessarily burdens the social utility in general practitioners serving as first-stop medical providers for a litany of maladies, including mental and emotional issues that may not be so severe as to require a mental health specialist,” Castille said. “This is a difficult balance — far more nuanced than the dissent allows — not particularly suited to judicial resolution as a matter of common law development.”

With respect to the third Althaus factor — the potential risk and foreseeability of harm that could come from sexual relations between general practitioners and patients they’ve treated for mental or emotional issues — Castille said a general practitioner who is not employing transference and may in fact be unfamiliar with the phenomenon is less likely to foresee the potential harm of a sexual relationship with a patient.

“The harm and the risk are real with regard to the patient, but this Althaus factor focuses on foreseeability respecting the doctor and whether a concomitant duty may reasonably be imposed on a general practitioner based solely on the nexus of some degree of mental or emotional care and the occurrence of a sexual relationship,” Castille said.

Addressing the fourth Althaus factor — the consequence of extending a specialist duty to general practitioners — Castille said doing so would only serve to discourage general practitioners from providing “what appears to have become, by now, relatively routine” mental and emotional care to their patients.

Considering the fifth and final Althaus factor — the public interest in extending a specialist duty to general practitioners — Castille said doing so “would likely have little effect on those doctors who would intentionally exploit their ‘power’ over their patients to satisfy their own libidos.”

Todd, however, called Castille’s approach to the Althaus factors “overstated.”

“In my view, fair application and proper weighing of the Althaus factors leads convincingly to the conclusion that a physician who is providing treatment for a patient’s mental health disorder has a duty not to engage in sexual conduct with his patient, especially in light of the vulnerabilities of a patient with a mental health disorder and the fact that a physician … is already prohibited from sexual relations with a patient under professional medical standards,” Todd said.

Wolfert’s attorney, Kimberly A. Boyer-Cohen of Marshall, Dennehey, Warner, Coleman & Goggin in Philadelphia, said she was not authorized to comment on the case.

Counsel for the Thierfelders, Bruce G. Cassidy of Bruce G. Cassidy & Associates in Princeton, N.J., also could not be reached.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 67-page opinion in Thierfelder v. Wolfert, PICS No. 12-1853, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •