Summing up their reversal of a Montgomery County Court of Common Pleas’ dismissal of plaintiff’s complaint on preliminary objections:
Therefore, taking the facts pled in the Thierfelders’ complaint as true, we hold that when a physician is providing specific treatment for psychological problems, and has a sexual relationship with the patient, if that sexual relationship directly causes the patient’s psychological/emotional symptoms to worsen, that patient has potentially stated a cognizable cause of action for malpractice. These doctors need not be specialists in psychological care, but merely must be medically licensed to treat patients for such conditions. We note that in this case it is claimed that Dr. Wolfert was actively treating the patient for those issues, and not merely cognizant of them."
David Thierfelder & Thierfelder v. Wolfert, 2009 PA Super 92 (Pa. Super. Ct. 2009).
The case clarifies the rule set by Long v. Ostroff, which held "a general practitioner’s duty of care does not prohibit an extramarital affair with a patient’s spouse." Long, 854 A.2d 524 (Pa. Super. 2004).
Perhaps of more interest to law students, Thierfelder goes through the basic elements of tort duties and medical malpractice:
To establish a case of malpractice requires evidence that the physician acted negligently or unskillfully performed his duties which are devolved and incumbent upon him on account of his relations with his patients, or lacked the proper care and skill in the performance of a professional act. Keech v. Mead Joson and Co., 580 A.2d 1374 (Pa. Super. 1990). In order to set forth a prima facie case of malpractice, a plaintiff must establish the essential elements of a negligence cause of action, namely: (1) a duty owed by the doctor to the patient; (2) a breach of that duty; (3) the breach of duty was the proximate cause, or substantial factor in bringing about the harm suffered by the patient; and (4) damages suffered by the patient resulting directly from that harm. Gregorio v. Zeluck, 678 A.2d 810 (Pa. Super. 1996) (emphasis added). In order to meet this burden, the plaintiff is required to provide expert testimony to establish, to a reasonable degree of medical certainty, that the acts of the physician deviated from acceptable medical standards, and that such deviation was the proximate cause of the harm suffered. Id.(a) Physician’s Duty of Care to Patient and Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000).
Here, the trial court concluded that a general practitioner, such as Dr. Wolfert, does not breach a duty to his patient by having a sexual affair with that patient while under the physician’s care. The concept of duty has been discussed by our Supreme Court in Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000). The existence of a duty is a question of law for the court to decide. R.W. v. Manzek, 888 A.2d 740 (Pa. 2005). In Althaus, supra, the Supreme Court stated that the determination of whether a duty exists in such a case involves weighing the following factors:(1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. 756 A.2d at 553.
Thierfelder, 2009 PA Super 92 at * 11-12 (Pa. Super. Ct. 2009).
As noted by the dissent, in Physicians Ins. Co. v. Pistone, 726 A.2d 339 (Pa. 1999), the Pennsylvania Supreme Court denied medical malpractice liability insurance coverage to a doctor who, in the course of examining the patient for treatment for gallstones, performed a number of offensive and lewd acts. Pistone held medical malpractice liability "looks to whether the act that caused the alleged harm is a medical skill associated with specialized training," which the foregoing was not.
The case thus has good odds of eventually ending up in front of the Pennsylvania Supreme Court: given Pistone, the doctor’s insurer likely believes they are under no duty to indemnify the doctor, and so is paying for the doctor’s defense subject to a reservation of rights. Given the possibility of there being no coverage under Pistone, the insurer is likely loathe to contribute to sizable settlement, which means the parties will keep fighting it out until the Pennsylvania Supreme Court decides it for them.