Sex. A simple word encapsulating a plethora of emotions. By now everyone is familiar with the President Clinton-Monica Lewinsky scandal, or ZipperGate as it is more affectionately labeled by the press. The President was caught literally "with his pants down" in a series of indiscreet sexual encounters with a young, female intern. The scandal rocked his administration and nearly cost him his job. The average citizen was left questioning his motives and lack of judgment. The Wall Street Journal even contemplated whether President Clinton might be a "sex addict." (1) Had the President unscrupulously used his power and influence for sexual gain? Or did he simply succumb to the wily charms of a youthful nymphet? These are questions to which no one (other than the affected parties) knows the answer. The ramifications of his boorish behavior, however, are unfortunately shared by the American public. The sanctity and prestige of the Presidential office may never recover. Future generations may be forced to examine a candidate's sexual peccadilloes along with his or her political proposals. But one thing is very clear. Sex, in the wrong place, or at the wrong time, or even with the wrong person, can have serious, serious consequences. Nothing about sex is simple.
This note examines "consensual" sexual relationships between non-mental health physicians and patients. (2) More specifically, it examines whether such relationships ever amount to medical malpractice. Generally, a non-mental health physician would be liable under the rubric of medical malpractice only if the sexual relationship was commenced under the guise of "medical treatment." (3) Recent cases, however, have expanded liability in certain circumstances when the physician-patient relationship has involved "counseling matters." "Counseling matters" describes talking to patients about their feelings, or discussing personal problems not necessarily related to their proposed treatment. Medical treatment supplemented by "counseling" purportedly requires greater scrutiny due to the higher levels of trust and confidence necessary to protect the patients' interests. (4) These cases adopt the more rigorous legal approach applied to mental health physicians. Mental health physicians (psychologists and psychiatrists) have routinely been held liable for medical malpractice based on sexual relationships with their patients. This liability arises out of mishandling the "transference phenomenon." (5)
The "transference phenomenon," a Freudian discovery (6), involves the creation of a father-son, mother-daughter relationship between the doctor and patient which is ultimately necessary to promote psychological healing. (7) Patients who experience such a phenomenon tend to be sexually vulnerable to their therapists. (8) Sexual contact with a patient, therefore, may cause irreparable harm to the patient's psyche. (9) A good psychiatrist/psychologist will avoid acting on this vulnerability and apply techniques to lessen it. (10) A bad psychiatrist/ psychologist will initiate a sexual relationship, or through "countertransference" project his or her unhealthy feelings onto a client. (11) Transference issues arise, to some degree, in all relationships when perceived authority figures exist. (12) Psychologists, psychiatrists, counselors, physicians, lawyers, and the clergy all deal with transference issues. (13) Consequently, it is not surprising that all these professions view sex with a client in an unfavorable light. (14)
The main question this article addresses is whether sexual relations between two consensual adults in the physician-patient relationship constitutes medical malpractice. Such a relationship may be unethical. (15) Such a relationship may also result in severe civil or administrative penalties. (16) Such a relationship may even be criminal. (17) However, this author asserts that in no circumstances does the behavior ever rise to medical malpractice. …