
    Julie Roy, Respondent, v Renatus Hartogs, Appellant.
    Supreme Court, Appellate Term, First Department,
    January 30, 1976
    
      
      Cohen & Bauman (Jesse Climenko and James H. Schuyler of counsel), for appellant. Bans Feinberg & Cohen (Robert Stephan Cohen and Deborah E. Bans of counsel), for respondent.
   Per Curiam.

A complaint should not be dismissed on the opening statement of counsel unless, accepting as true all facts stated in the opening and resolving in plaintiffs favor all material facts in issue, plaintiff nevertheless is precluded from recovery as a matter of law (Rivera v Board of Educ. of City of N.Y., 11 AD2d 7, 8, 9). Counsel asserted in the opening statement that the defendant, a psychiatrist, had treated the plaintiff, as his patient, during the period March, 1969 through September, 1970. It was further averred that, during the last 13 months of her treatment, plaintiff was induced to have sexual intercourse with the defendant as part of her prescribed therapy. As a result of this improper treatment, counsel alleged that the plaintiff was so emotionally and mentally injured that she was required to seek hospitalization on two occasions during 1971.

The right of action to recover a sum of money for seduction has been abolished by article 8 of the Civil Rights Law and the predecessor legislation found in article 2-A of the Civil Practice Act. These statutes were passed, as a matter of public policy, so that marriages should not be entered into because of the threat or danger of an action to recover money damages and the embarrassment and humiliation growing out of such action (Fearon v Treanor, 272 NY 268, 274). However, this legislation did not abolish all causes of action wherein the act of sexual intercourse was either an "incident of’ or "contributed to” the ultimate harm or wrong (Tuck v Tuck, 14 NY2d 341). In this proceeding, the injury to the plaintiff was not merely caused by the consummation of acts of sexual intercourse with the defendant. Harm was also caused by the defendant’s failure to treat the plaintiff with professionally acceptable procedures (cf. Zipkin v Freeman, 436 SW2d 753, 761, 762 [Mo, 1969]; cf. Anclote Manor Foundation v Wilkinson, 263 So 2d 256, 257 [Fla, 1972]). By alleging that his client’s mental and emotional status was adversely affected by this deceptive and damaging treatment, plaintiff’s counsel asserted a viable cause of action for malpractice in his opening statement (Tuck v Tuck, supra, p 345).

Generally, evidence of other acts or transactions, even of a similar nature, are not admissible where such acts can only be deemed relevant through the inference that the party would follow the same course in the transaction in issue (21 NY Jur, Evidence, § 181). However, the physical condition of the defendant in this appeal became relevant when he stated that he did not have sexual intercourse after 1965 because of a hydrocele (21 NY Jur, Evidence, § 187; 29 Am Jur 2d, Evidence, § 439). At that juncture, the testimony of witness Stern was correctly received in rebuttal on defendant’s physical condition in 1969 and 1970 when he was treating the plaintiff. Because witnesses Guttler and Sherwood were unaware of defendant’s physical capability during the period in issue, their testimony was properly stricken by the court below. In the context of this protracted trial, the jurors were not so unduly influenced by this stricken testimony as to warrant a reversal on this ground (Mercadante v Barry Transp. Co., 23 AD2d 653, affd 17 NY2d 462).

Since the brief and unsolicited meeting between juror Smith and witness Sherwood occurred after the rendition of the verdict on liability, the defendant cannot meritoriously contend that the resolution of the liability issue was tainted by juror misconduct. The propriety of the transfer from Supreme Court to Civil Court (CPLR 325, subd [d]) was not raised below and will not be considered, for the first time, upon appeal.

The award of $50,000 in compensatory damages for defendant’s aggravation of plaintiff’s pre-existing mental disorders, is, however, in our opinion excessive. Plaintiff’s condition was of long standing, and began years before she became defendant’s patient. There is no evidence to support a permanent worsening of the condition by defendant’s acts; nor is there proof demonstrating a permanent impairment of her ability to work in a position comparable to that she had before or during the period she was defendant’s patient. Given the fact that she may recover only for the aggravation of her condition by defendant (Schneider v New York Tel. Co., 249 App Div 400), we conclude that an award of more than $25,000 would be excessive.

The jury’s finding, implicit in its award of punitive damages, that the defendant was actuated by evil or malicious intentions when the parties had sexual intercourse was against the predominating weight of the credible evidence. Viewing all the facts and circumstances incident to the occurrences most favorably to the plaintiff as disclosed in this record (Sanders v Rolnick, 188 Misc 627, affd 272 App Div 803), the weight of the evidence did not justify the jury’s finding that defendant’s conduct, while inexcusable, was so wanton or reckless as to permit an award for punitive damages (Hedrick v Jebiley, 198 NYS2d 346; 14 NY Jur, Damages, §§ 177, 179; Walker v Sheldon, 10 NY2d 401; cf. Conners v Walsh, 131 NY 590; Da Costa v Technico Constr. Corp., 74 Misc 2d 583, affd 78 Misc 2d 1100, lv to app den NYLJ, Dec. 31, 1974, p 2, col 1). The other points of error raised in defendant’s brief are clearly without merit and need not be explored in this decision.

Judgment, entered July 29, 1975, reversed and new trial ordered limited to the issue of compensatory damages, with $30 costs to appellant to abide the event that plaintiff recovers less than $25,000 in compensatory damages, unless respondent within 10 days after service of a copy of the order entered hereon with notice of entry, stipulates to reduce the recovery to $25,000, in which event judgment modified accordingly and as modified, affirmed without costs.

Markowitz, P. J.

(concurring). I concur in the Per Curiam but would like to add the following observations.

The subject matter of this case was highly sensational forcing the participants to operate in a charged atmosphere rather than the calm almost cloistered climate of the routine civil courtroom. However, since this State has not closed the door on all actions merely because sexual relations are part of the core facts, and does permit civil prosecutions where the wrong alleged is grounded on conventional tort (Tuck v Tuck, 14 NY2d 341) there is no question that the facts adduced in this record were properly presented to the jury as a possible basis for malpractice which had a causal connection to plaintiff’s subsequent psychotic episodes.

While cultists expound theories of the beneficial effects of sexual psychotherapy, the fact remains that all eminent experts in the psychiatric field including the American Psychiatric Association abjure sexual contact between patient and therapist as harmful to the patient and deviant from accepted standards of treatment of the mentally disturbed.

Dr. Ernest Jones, in his encyclopedic treatment of "The Life and Work of Sigmund Freud” (New York, Basic Books, Inc. 1953) sets forth (vol 3, p 163) a letter written by Freud to a colleague which is relevant to the discussion here.

It reads in pertinent part as follows:

"13. XII. 1931

"Lieber Freund: * * *

"* * * You have not made a secret of the fact that you kiss your patients and let them kiss you * * *

"Now I am assuredly not one of those who from prudishness or from consideration of bourgeois convention would condemn little erotic gratifications of this kind. * * * But that does not alter the facts * * * that with us a kiss signifies a certain erotic intimacy. We have hitherto in our technique held to the conclusion that patients are to be refused erotic gratifications. You know too that where more extensive gratifications are not to be had milder caresses very easily take over their role, in love affairs, on the stage, etc.

"Now picture what will be the result of publishing your technique. There is no revolutionary who is not driven out of the field by a still more radical one. A number of independent thinkers in matters of technique will say to themselves: why stop at a kiss? Certainly one gets further when one adopts 'pawing’ as well, which after all doesn’t make a baby. And then bolder ones will come along who will go further to peeping and showing — and soon we shall have accepted in the technique of analysis the whole repertoire of demiviergerie and petting parties, resulting in an enormous increase of interest in psychoanalysis among both analysts and patients. The new adherent, however, will easily claim too much of this interest for himself, the younger of our colleagues will find it hard to stop at the point they originally intended, and God the Father Ferenczi gazing at the lively scene he has created will perhaps say to himself: may be after all I should have halted in my technique of motherly affection before the kiss.

"Sentences like 'about the dangers of neocatharsis’ don’t get very far. One should obviously not let oneself get into the danger. I have purposely not mentioned the increase of calumnious resistances against analysis the kissing technique would bring, although it seems to me a wanton act to provoke them. * * *

With cordial greetings Your Freud”

Thus from the font of psychiatric knowledge to the modern practioner we have common agreement of the harmful effects of sensual intimacies between patient and therapist.

Of interesting note is an annotation entitled Civil Liability of Doctor or Psychologist for Having Sexual Relationship With Patient (Ann 33 ALR 3d 1393), in which the notewriters state: "Apart from Nicholson v Han [12 Mich App 35, a case whose facts are not applicable here] research has failed to disclose any case in which the courts have discussed or passed upon the civil liability of a doctor or a psychologist, as such, who, while the doctor-patient relationship subsisted, had established a sexual relationship with a patient.” However, where the sexual contacts are themselves the prescribed course of treatment and where such treatment is outside of accepted professional standards, what remains is a simple malpractice action as to which research would be merely cumulative.

On the question of punitive damages, such recovery is allowed in cases where the wrong complained of is morally culpable, or is actuated by evil and reprehensible motives, not only to punish the defendant but to deter him as well as others, from indulging in similar conduct in the future. (Walker v Sheldon, 10 NY2d 401, 404.) ■

In the instant case all that has been established is professional incompetence. It was established that plaintiff was influenced to participate on a theory that it would solve her problems.

Sex under cloak of treatment is an acceptable and established ground for disciplinary measures taken against physicians either by licensing authorities or professional organizations (see Ann 15 ALR 3d 1179). Whether defendant acted in such manner as to seriously affect his performance as a practitioner in the psychiatric field should be left to these more competent fora, rather than by seeking deterrence by way of punitive damages. The only thing that the record herein supports is that his prescribed treatment was in negligent disregard of the consequences. For that, and that alone, he must be held liable.

Riccobono, J.

(dissenting). The plaintiff pursued her action for malpractice by alleging that over a period of some 13 months the defendant made sexual advances towards her with a lewd and lascivious motive and that he did in fact engage in sexual intercourse and other acts of carnal knowledge with her, in a purported furtherance of psychiatric treatment. Plaintiff further asserts that instead of assisting and curing her, the defendant’s therapeutic methods caused her permanent mental and emotional harm. This harm, it is alleged, was caused by the defendant’s failure to treat the plaintiff by acceptable medical procedures.

The right of action to recover a sum of money for seduction was abolished by virtue of former article 2-A of the Civil Practice Act, now section 80-a of the Civil Rights Law. Article 8 of the Civil Rights Law must be liberally construed to effectuate this purpose (Civil Rights Law, § 84). This legislation was passed as a matter of public policy because of the threat or danger of an action to recover money damages and the embarrassment and humiliation emanating from such scandalous causes of action.

In the case at bar, although the plaintiff was suffering from a number of emotional problems her competency was never placed in issue. Is it not fair to infer, therefore, that she was capable of giving a knowing and meaningful consent? For almost one and a-half years while this "meaningful” relationship continued, the plaintiff was not heard to complain. Upon the defendant terminating the relation, this lawsuit evolves.

The defendant obviously did not help his cause by denying what the jury found to be the fact, viz, that the defendant did have sexual relations with the plaintiff. Nevertheless, however ill-advised or ill-conceived was the choice of his defense, in my view this did not constitute malpractice. The plaintiff was still obliged to prove her case by the preponderance of the credible evidence, regardless of the defendant’s defense.

I neither condone the defendant’s reprehensible conduct, nor maintain that it was not violative of his professional ethics and Hippocratic oath. If, however, the defendant has committed a crime, let him be brought before the criminal halls of justice. For violation of his Hippocratic oath, if there be any, let him suffer the sanctions of the Medical Ethics Board or other appropriate medical authority. But let him not be convicted of his acts of misfeasance and malfeasance by virtue of an action in malpractice. I might parenthetically add, that if the plaintiff is to succeed I am in total agreement with my colleagues that the plaintiff is not entitled to punitive damages and am likewise in full accord that her recovery should not exceed $25,000.

The relief sought by this plaintiff constitutes the closest approach to a conventional action for seduction, and hence must be treated as such. This is barred by section 80-a of the Civil Rights Law (Fernandez v Lazar, NYLJ, Sept. 15, 1971, p 19, col 6 [NY Sup Ct, Leff, J.]; Nicholson v Han, 12 Mich App 35). As so inextricably intertwined, I would reverse and dismiss the complaint.

Markowitz, P. J., and Tierney, J., concur, Markowitz, P. J., in concurring memorandum; Riccobono, J., dissents in separate memorandum.  