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A doctor may have to keep your secrets, but he doesn’t have to tell you his — even if it’s that he’s sleeping with your wife. A Philadelphia judge has ruled in what appears to be a case of first impression that a doctor does not have a professional duty to refrain from sexual affairs with spouses of patients. Common Pleas Judge Sandra Mazer Moss granted the doctor’s motion to dismiss the negligence suit in an Aug. 15 decision that has been appealed to the Superior Court. Walter Long of Philadelphia sued his family physician, Dr. Jonathan E. Ostroff, in 2000 after he went for an office visit and Ostroff did not disclose the affair he was having with Long’s wife, Roseanne. During that 1998 office visit, Long also complained of anxiety. “He said that his marriage was falling apart and that he was worried about that,” said Long’s attorney, Timothy M. Kolman. “He told the doctor that.” Roseanne Long had previously expressed her desire to divorce her husband, and they divorced the following year, according to the opinion. While many jurisdictions have recognized that a sexual relationship between a psychiatrist and patient can constitute malpractice, there was no therapist-patient relationship between the doctor and either of the Longs, Mazer Moss wrote. Thus, the affair did not constitute malpractice under state law. “There is no authority which supports liability for a physician involved personally with a patient’s estranged spouse,” Mazer Moss wrote in Long v. Ostroff. Mazer Moss’s ruling also found that the plaintiff’s expert, David Behar, was not qualified to testify under the Medical Care Availability and Reduction of Error Act. Behar is a board-certified psychiatrist and Ostroff an osteopathic physician; MCARE requires that medical experts practice in the same subspecialty as the defendant doctor. The MCARE law had not been enacted when Behar was submitted as an expert, Kolman said. Counsel for Ostroff, Richard E. Geschke Jr., declined to comment. Mazer Moss did note that Long’s allegations appeared to stem from a claim of intentional infliction of emotional distress rather than negligence. An attempt to amend the original complaint to include an emotional distress claim in 2002 was denied. Kolman was uncertain whether the facts of the case would have been sufficiently outrageous to sustain an infliction of emotional distress claim.

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