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A physician owes his patient a duty of care, but he doesn’t necessarily owe him the truth — that he’s sleeping with his wife, the Superior Court ruled last week in a case of first impression. A general practitioner who slept with a patient’s wife — who was also a patient — can’t be sued for malpractice in Pennsylvania, a three-judge panel concluded, affirming a decision issued by the Philadelphia Court of Common Pleas last year in Long v. Ostroff. Sexual misconduct “may be unethical,” the court noted, but state law doesn’t recognize such a claim for professional negligence because a general practitioner’s duty of care doesn’t prohibit that behavior. Unlike psychiatrists, who have a “special duty” to refrain from engaging in sexual relations with a patient’s spouse, general practitioners don’t have such a duty, Senior Judge Justin M. Johnson explained. The doctor’s attorney, Richard Geschke of McCann & Geschke, said the court’s decision was essentially that “you should not bring domestic disputes through the back door by a medical malpractice case.” The plaintiff, Walter Long, plans to appeal the decision, said his lawyer, Timothy M. Kolman of Timothy M. Kolman & Associates in Langhorne. Long, of Philadelphia, sued his family physician, Jonathan E. Ostroff, 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 complained of anxiety and requested a referral to a mental health professional because of his marital problems, according to the opinion. Roseanne Long, who was also a patient of Ostroff’s, had previously expressed her desire to divorce her husband, with whom she had two children. The couple divorced the following year, and she and Ostroff are now married, according to the opinion. In his complaint, Long alleged medical malpractice, loss of consortium and punitive damages. Long later withdrew the loss of consortium claim, and the trial court struck the punitive damages claim, according to the opinion. In May 2003, Common Pleas Judge Sandra Mazer Moss granted Ostroff’s motion for summary judgment. Long appealed. He maintained that Ostroff owed him a duty of care not to engage in a sexual relationship with his wife, pointing to an opinion issued by the North Carolina Court of Appeals, Mazza v. Huffaker. But in the Superior Court’s opinion last week, Johnson distinguished Mazza, which held that psychiatrists have a special duty not to engage in sexual relations with their patients’ spouses: “‘Especially in light of the intimate relationship between psychiatrist and patient, the psychiatrist’s duty once the psychiatrist-patient relationship has been established extends beyond the hospital or consulting room and includes social situations,’” Johnson wrote, quoting the Mazza court. Sexual relations between a psychiatrist and a patient’s wife, if discovered by the patient, “‘would make it extremely difficult for the patient to establish ever again a necessary trusting relationship with any psychiatrist, would render previous treatment useless, and would do harm to the well-being of the patient.’” Johnson also noted that when the Mazza court issued its decision in 1983, North Carolina recognized claims for criminal conversion — where a plaintiff sues the individual having sex with the plaintiff’s spouse — and alienation of affection, which is a claim requiring proof that the defendant’s “malicious acts” caused the marriage to suffer a loss of love and affection. North Carolina has since done away with those claims, and Pennsylvania has also abolished them, Johnson explained. Kolman disputed the Superior Court’s rationale for its refusal to apply the same standard to general practitioners as was applied to psychiatrists in Mazza. “The basis on which the court based that distinction was by arguing that the relationship of trust between a patient and a psychiatrist is somehow deeper than the relationship of trust between a patient and his doctor,” Kolman said. But patients divulge personal and confidential medical information to doctors just as they divulge sensitive information to psychiatrists, Kolman said. “If a patient is to have doubt about how this confidential information will be used by the family physician — for his own personal and lustful uses — it will have a direct and profound effect on the doctor-patient relationship by making patients discouraged from revealing information,” he said. The expert report Long submitted to the court in support of his claim was written by a psychiatrist, David Behar, who at the time worked for Hahnemann University Hospital. Behar, who evaluated Long in 2002, reported that the affair between Long’s wife and his doctor caused him distress, long-term depression and prompted his loss of trust in physicians, according to his evaluation. “[Long] had always assumed that his medical interests would come first in any relationship with a physician, especially one of long standing,” Behar wrote. “He now harbors doubts, based on this experience, losing his wife.” By having an affair with Long’s wife, Ostroff breached his duty not to harm Long, his patient — in violation of the Hippocratic Oath, Behar concluded. Sexual misconduct is a more severe deviation from the standard of care because it is willful “and not just an unintended error of omission or commission,” Behar concluded. Geschke said that the trial court found Behar unqualified to render an opinion as an expert in Long in part because he was a psychiatrist and, therefore, not within the same medical specialty as the defendant physician as required for expert testimony under the Medical Care and Reduction of Error Act. The Superior Court didn’t address this issue on appeal — although Long raised it — because it found Ostroff did not have a duty to disclose his affair with Long’s wife, Johnson said. Judges Debra B. Todd and Jack A. Panella joined Johnson on the court panel.

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