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Doc wants malpractice judgment for affair voided

ALBANY -- The attorney for a Long Island family doctor told New York's top court Wednesday that his client's affair with a patient was consensual and separate from her treatment, urging the judges to overturn her medical malpractice award for $416,500.

Attorney Norman Dachs argued at the Court of Appeals that Kristin Kahkonen Dupree, who ended up divorced after the nine-month affair ended 2002, initially seduced Southampton physician James E. Giugliano and later sued him. The osteopath was treating Dupree for a gastrointestinal condition, Dachs said, and while his behavior was unethical, it wasn't medical malpractice.

Doctors' actions would have to be related to treatment to be considered malpractice, Dachs said.

Questioned by the judges, he acknowledged the jury could find that Giugliano also was giving Dupree "some sort" of mental health treatment.

"There was no indication by him, or no thought on the part of the patient, that this extramarital sexual relationship had anything to do with that treatment," Dachs said.

A jury had found Giugliano 75 percent at fault and awarded Dupree damages for mental distress and economic loss and $166,000 in punitive damages. A midlevel court split 3-1 in upholding the malpractice verdict.

"Isn't it different when a doctor takes advantage of a medical condition, a vulnerability, that the patient has and uses his superior knowledge about that condition to victimize the patient?" Chief Judge Jonathan Lippman said. "Isn't that a violation of your professional obligation?"

Dachs called that a violation of professional obligation, but not medical malpractice.

Attorney Kenneth Cooperstein, representing Dupree, said the doctor had also given her advice and medications for psychological conditions, depression and panic attacks, and breached her trust.

Giugliano had been treating her for 18 months before the affair started, he said.

"That relationship crossed the line from ordinary transference," Cooperstein said, referring to a patient's tendency to shift emotions toward a therapist over time. "She was particularly vulnerable."

"Aren't you really saying that anyone who falls in love with a doctor, or at least with a therapist, can sue when the relationship ends badly?" Judge Robert Smith asked.

The seven-member court's ruling is expected in November.

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