'Playing Doctor' with the Patient's Spouse: Alternative Conceptions of Health Professional Liability
Virginia Journal of Social Policy & Law, Vol. 14, p. 308, 2006
50 Pages Posted: 29 May 2009
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Linda Demaine
The purpose of this Article is to provide the in-depth analysis lacking in the case law and scholarly literature on the question of whether a physician's sexual affair with a patient's spouse constitutes malpractice. Regardless of the legal theory pursued by the patient, with one minor exception, physician-affair claims have been decided uniformly and summarily against the patient. The issue may superficially seem to be a narrow one, but its thorough analysis illuminates the logic behind, and limits to, tort law theories as diverse as fraud, infliction of emotional distress, breach of fiduciary duty, and medical malpractice. Even theories of contractual and criminal liability are implicated. To the extent that the judicial reasoning that undergirds the physician-affair jurisprudence can be discerned, it will be evaluated. More importantly, a substantial body of unconsidered scientific literature, professional standards, and case law that bear on this issue will be discussed. With insights derived from these sources, the potential viability of the traditional legal theories espoused in physician affair cases will be reassessed; in addition, two new equitable theories of recovery will be proposed.
Keywords: tort, physician-patient, professional liability
Demaine, Linda, 'Playing Doctor' with the Patient's Spouse: Alternative Conceptions of Health Professional Liability (2006). Virginia Journal of Social Policy & Law, Vol. 14, p. 308, 2006. Available at SSRN: https://ssrn.com/abstract=1411214
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