52 A.3d 1251 | Pa. | 2012
Lead Opinion
OPINION
The question presented in this case is one of first impression for this Court: whether a medical general practitioner who provides incidental mental health treatment to a patient, with whom he then engages in a sexual affair, may be held to a particularized “specialist duty,” applicable to mental health professionals, that prohibits consensual sexual contact with patients, such that the defendant general practitioner may be subject to medical malpractice liability in tort. For the following reasons, we decline to impose such a duty as a matter of Pennsylvania common law. Accordingly, we vacate and remand to the Superior Court for further disposition consistent with this Opinion, including consideration of whether any preserved issues remain that were not addressed as a result of the Superior Court’s disposition.
This appeal arises from an order sustaining preliminary objections. In our review, we accept as true all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts. Stilp v. Commonwealth, 596 Pa. 62, 940 A.2d 1227, 1232 n. 9 (2007).
David Thierfelder (“appellee-husband”) began receiving treatment from Irwin Wolfert, M.D. (“appellant”), a family practitioner, in October 1996. Mr. Thierfelder’s wife Joanne Thierfelder (“appellee-wife”) began treating with appellant about a month later. Both appellees saw appellant for several years, during which time appellant treated both for, inter alia, libido problems. Appellant’s treatment of ap-pellee-wife addressed various physical ailments but also symptoms of depression, anxiety, stress, attention deficit disorder, and other emotional problems. Eventually, appellee-wife came to believe that appellant had “cured” her problems; she told him that he was her “hero” and that she believed she was in love with him. In the spring of 2002, the two began a sexual relationship that persisted for almost one year. The encounters took place at the Medical Center at Gwynedd where appellant maintained an office, in an automobile, and at appellant’s parents’ residence. Ap-pellee-wife became increasingly anxious and depressed; at one point, she attempted to break off the relationship, but appellant convinced her to continue until she finally ended the affair in January 2003.
In March 2003, appellee-wife told her husband about the sexual affair. In July, appellees together filed suit, along with a certificate of merit, naming as defendants appellant, the Medical Center at Gwynedd,
Appellees filed an amended complaint shortly thereafter, which contained no substantive changes, but separated the allegations in the original complaint into four untitled, enumerated sections. Amended Complaint, 8/7/03. Appellant responded by filing preliminary objections asserting that appellees had failed to state causes of action for negligent and intentional infliction of emotional distress; willfulness, wantonness, and recklessness; tortious interference with a marital contract; breach of fiduciary duty; and breach of physician-patient confidentiality. Appellant also argued that appellees failed to state a cause of action for medical negligence because them allegations stated only that the sexual relationship arose after appellant’s “rendition of medical care” to appellee-wife, as demonstrated by her statement that appellant had “cured” her; according to appellant, a cause of action for medical negligence must assert sufficient facts that the harm claimed arose “from” (and not “after”) the rendition of medical care. Appellant’s Preliminary Objections, 8/26/03.
Next, appellees filed a second amended complaint, which provided titles for the enumerated sections; relevant to this appeal, the first two sections were now titled “Negligence” and “Medical Malpractice.” In the “Negligence” section, appellees repeated their original allegations to the effect that appellant was reckless, negligent, and careless and deviated from the “standard of care for physicians under the circumstances” by: instituting and continuing a sexual relationship with his patient; failing to end the sexual relationship; failing to insist that appellee-wife find another physician to treat her; placing his own physical needs and desires before the psychological welfare of his patients; misusing confidential information; violating a fiduciary duty; interfering with appellees’
Appellant responded with additional preliminary objections reiterating that his sexual relationship with appellee-wife “commenced outside of the course and scope of the rendering of medical services,” and thus, appellees had not established a cause of action for either ordinary or medical negligence. Appellant also referred to a recent trial court decision in which the Honorable Sandra Mazer Moss of the Court of Common Pleas of Philadelphia County held that, lacking a mental health therapist-patient relationship, sexual relations between a physician and a patient’s estranged wife did not constitute medical malpractice. Appellant’s Preliminary Objections to Second Amended Complaint, 10/15/03 (citing Long v. Ostroff, 63 Pa. D. & C. 4th 444 (Pa.Com.Pl.2003)). Appellees answered the preliminary objections, stating that their certificate of merit expressed that appellant’s conduct departed from acceptable medical standards and was the cause of appellees’ harm; appel-lees also argued that contrary to appellant’s assertions, a mental health therapist-patient relationship did arise and develop between appellant and appellee-wife. Ap-pellees’ Answer to Appellant’s Preliminary Objections, 10/31/03. The court overruled appellant’s preliminary objections, but ordered appellees to file another amended complaint pleading their asserted material facts with greater specificity. Trial Ct. Order, 1/16/04.
Appellees filed a third and final amended complaint in February 2004. In the section titled “Negligence,” appellees set forth a detailed account of the manner in which the affair between appellant and appellee-wife began and how appellee-wife grew increasingly more anxiety-ridden, obsessive, and dependent as the relationship progressed. Appellees also alleged that appellant made attempts to convince ap-pellee-wife to continue the relationship when she attempted to end it. Appellees also added allegations that appellant made certain statements to appellee-wife that worsened her already fragile emotional state over the affair. In the “Medical Malpractice” section, appellees listed the same allegations set forth in the previous complaint. Third Amended Complaint, 2/4/04.
In his answer, appellant generally denied appellees’ allegations and specifically
In March 2004, appellant filed preliminary objections in the 04-03111 matter asserting, inter alia, that appellees’ complaint failed to state a cause of action for either ordinary negligence or medical malpractice. Appellant argued that appellees’ complaint did not set forth the requisite factual basis to prove that his rendition of professional medical services to appellees caused them cognizable injury or was an “unwarranted departure from generally accepted standards of medical care.” Moreover, according to appellant, “the alleged sexual conduct at issue can’t possibly constitute medical malpractice under Pennsylvania law where the therapist-patient relationship is lacking.” Appellant cited Judge Moss’s decision in Long v. Ostroff for the proposition that, in the absence of a therapist-patient relationship, a family physician’s sexual conduct with a patient’s wife did not constitute medical malpractice under Pennsylvania law. As for appellees’ allegations sounding in ordinary negligence, appellant countered that “the mere happening of a consensual sexual relationship between adults, outside of the context of marriage,” did not give rise to a duty of care in either participant to the other participant “with respect to the commencement, happening of or termination” of the relationship. Appellant’s Preliminary Objections and Memorandum in Support, 3/15/04, at 6.
The trial court initially overruled the preliminary objections and litigation proceeded, but in June 2004, the Superior Court affirmed Judge Moss’s disposition in Long. Long v. Ostroff 854 A.2d 524 (Pa.Super.2004). Based on that decision, appellant sought reconsideration of the trial court’s decision to overrule his preliminary objections.
In Long, a general practitioner who treated both the plaintiff and the plaintiffs wife engaged in a sexual affair with the wife, which the doctor did not disclose to the plaintiff, even when the plaintiff complained of anxiety due to marital problems and sought a referral to a mental health professional. The plaintiff sued, alleging medical malpractice. The doctor filed a motion for summary judgment, which was denied, and then a motion to dismiss, which was granted, and the patient appealed.
The Long Superior Court panel construed the trial court’s grant of the defendant’s motion to dismiss as a grant of summary judgment and noted that the “novel” legal issue presented was whether a claim for medical malpractice is cognizable, as a matter of law, premised upon a physician having an affair with his patient’s wife. The panel concluded that a general practitioner’s duty of care does not prohibit an extramarital affair with a patient’s spouse. In so holding, the panel noted that, in arguing that the doctor owed him a duty of care not to engage in a sexual relationship with his wife, the plaintiff relied “solely and heavily” upon a North Carolina case, Mazza v. Huffaker, 61 N.C.App. 170, 300 S.E.2d 833 (1983). The panel noted that Mazza was not binding in Pennsylvania and that, in any event, it was distinguishable on two grounds. First, the panel distinguished Mazza because it spoke to a supposed “special duty” owed by psychiatrists to their patients, which the panel said “does not extend to general practitioners.” Second, the Long
In his motion to reconsider, appellant herein relied upon Long’s discussion of Mazza to argue that, because he was a general practitioner and not a mental health professional, no “therapist-patient relationship” arose between himself and appellee-wife that could trigger a mental health specialist’s duty to avoid a sexual relationship. Thus, appellant argued, ap-pellees’ medical malpractice allegations were legally unsustainable. Appellant pointed particularly to the Long opinion’s distinction between unethical and tortious conduct by a medical professional: “Simply put, unethical conduct does not provide the foundation for a cause of action sounding in medical negligence.” Appellant’s Memorandum of Law in Support of Motion to Reconsider, 12/30/04, at 3. Appellant emphasized that appellees “have not alleged that [appellant’s] medical diagnoses of [appellees] were in any way negligent,” and also that the consensual sexual relationship between himself and appellee-wife was not connected to the manner in which he rendered professional medical care. Id. at 5-6.
Appellees responded that Long should be limited to its facts and read narrowly as holding only that a doctor has no duty to disclose a sexual relationship with a patient’s spouse to the patient, even if both spouses are patients of the doctor. According to appellees, Long should not be read as supporting the premise that a patient may not pursue a cause of action in malpractice against a medical doctor if the doctor (a non-mental health professional) has sexual contact with the patient. Ap-pellees also asserted factual distinctions. Appellees’ Answer to Motion to Reconsider, 1/20/05, at 1-2, 4.
The trial court granted reconsideration in January 2005; after oral arguments focusing on Long, the court vacated its previous order, sustained in part appellant’s preliminary objections, and dismissed with prejudice appellees’ claims of negligence, medical malpractice, fraudulent misrepresentation, negligent infliction of emotional distress, willful, wanton, and reckless behavior, and loss of consortium. Trial Ct. Order, 5/5/05.
Appellees’ appeal of the May 5, 2005 reconsideration order was quashed by the Superior Court as interlocutory in August 2005. After subsequent litigation and discovery, including consolidation with a previously separate, parallel matter, appellees stipulated to dismiss their claims for battery and intentional infliction of emotional distress, a stipulation the trial court approved. The stipulation allowed appellees to appeal the trial court’s now-final dismissal of their remaining claims, primarily appellee-wife’s claims based on allegations of ordinary negligence, negligent infliction of emotional distress, medical malpractice, fraudulent misrepresentation, and willful, wanton, and reckless behavior; and appel-lee-husband’s derivative loss of consortium claim.
In its opinion, the trial court asserted that it had not erred in sustaining appellant’s preliminary objections and dismissing appellees’ claims of ordinary negligence, negligent infliction of emotional distress, and medical malpractice. The court emphasized Long’s distinction of the Mazza case on the ground that it involved the duty of a psychiatrist, and not that of a general practitioner. The trial court stated that even though appel-lee-wife here was herself a patient and not just a patient’s spouse, as in Long, the reasoning in Long nonetheless “can be applied to the patient that consented to the sexual relationship” with the doctor. The trial court concluded that appellant’s conduct may have been unethical, but “it [was] not a breach of the duty of care when a general practitioner engages in a sexual relationship with a patient.” Trial Ct. Op., 5/4/07, at 7. The trial court did not articulate any substantive distinction between appellees’ medical malpractice claim, to which a discussion of Long was more directly relevant, and appellees’ additional remaining claims sounding primarily in allegations of ordinary negligence or professional negligence aside from the instance of the sexual relationship between appellant and appellee-wife.
On appeal to the Superior Court, appel-lees raised five issues, all pertaining to the trial court’s dismissal of their medical malpractice claim:
I — Did the court below err in dismissing Appellants’ medical malpractice action on the pleadings, while disregarding Appellants’ uncontradicted expert medical testimony that described Appellee’s duty, breach of that duty and deviation from the standard of care in instituting a sexual relationship with Appellant wife during the physician-patient relationship?
II — Did the court below err in determining that Long v. Ostroff, 2004 Pa.Super. 240 [854 A.2d 524], cert. denied 582 Pa. 700 [871 A.2d 192] (2005), barred wife Appellant’s claim against Appellee, as a matter of law, when Appellee instituted a sexual liaison with wife Appellant while Appellee was her treating physician, when that issue was never before the Court in Long?
III — Must this Honorable Court grant great deference to the findings and opinions of the Commonwealth of Pennsylvania Bureau of Professional and Occupational Affairs and the Commonwealth Court of Pennsylvania which have ruled that physicians committed unprofessional conduct and deviated from the standard of practice by engaging in a sexual relationship with a patient?
IV — Did the court below err in dismissing Appellant wife’s medical malpractice action against Appellee without first conducting the analysis required by Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000)?
V — Should this Honorable Court reconsider its decision in Long v. Ostroff in light of the Althaus v. Cohen analysis, and allow Appellant husband’s action to proceed?
Appellees’ Brief to Superior Court at 3. As phrased by appellees, the “essence” of the appeal was that the trial court “improperly deprived [appellees], especially [appellee-wife], of the opportunity to develop a cause of action for medical malpractice against [appellant] arising out of [appellant’s] institution of a sexual relationship during [appellant’s] medical treatment of [appellee-wife] for, inter alia, depression and anxiety arising from her marital relationship, while [appellant] was prescribing antidepressant medication for [appellee-wife].”
A divided three judge panel of the Superior Court affirmed in an unpublished decision.
In dissent, Judge Klein opined that, although appellant was a general practitioner, he had been treating appellee-wife for psychological and emotional problems when the sexual relationship began. In Judge Klein’s view, appellant was aware of appellee-wife’s vulnerability and should have known that sexual involvement with her carried a foreseeable and unreasonable risk of increased or enhanced mental and emotional difficulties arising directly from the affair itself. Judge Klein added that because general practitioners now often provide some degree of mental or emotional care for their patients, including prescription of medications (which does not appear to be in dispute), there is no longer a basis for maintaining a distinction between general practitioners and mental health professionals in a case like this.
The Superior Court granted reargument en banc, withdrew the original panel decision, and, in a new 6 to 3 decision, reversed the trial court’s decision, and remanded. Thierfelder v. Wolfert, 978 A.2d 361 (Pa.Super.2009) {en banc). The majority opinion by Judge Klein held that “a patient does have a cause of action against either a psychiatrist or a general practitioner rendering psychological care, when
Finally, in a subsection of the opinion entitled “General Practitioner versus Specialists,” the majority stated: “we believe that there is no reason to distinguish general practitioners from psychiatrists when those general practitioners are treating their patients’ psychological problems/conditions. In both cases the physicians need to maintain the same trust when rendering psychological care.” Id. at 367-68 (emphasis in original). The majority then concluded its duty analysis as follows:
[A]s it is alleged that Dr. Wolfert, a general practitioner, was rendering psychological care, it does not matter that he is not a specialized psychiatrist or psychologist. It is not appropriate to make a distinction between the two classes of physicians when they are rendering the same care. The risk of harm is different when a physician is rendering psychological care rather than treating for some other symptom. If [appel-lee-wife] had simply alleged that she had been treated by Dr. Wolfert for a non-emotional condition such as arthritis, we might not find that [appellee-wife] would have a viable cause of action against him. It well could be that under those circumstances a subsequent, intervening sexual relationship would have had no effect on her arthritic condition-thus establishing no causal connection for malpractice.
However, in this case, it has been pled that [appellee-wife] was being treated for emotional and psychological vulnerabilities. The allegation that the sexual relationship between her and her doctor intensified the nature of her condition compels our result today.
Id. at 368 (citations omitted). The majority pointed out in a footnote that appellees had also raised claims sounding in negligence, negligent infliction of emotional distress, fraudulent misrepresentation, and willful, wanton, and reckless behavior. However, the court did not further address the status of these remaining claims sounding in various theories of ordinary negligence. See id. at 363 n. 3, 365 n. 8.
Judge Lally-Green filed a dissenting opinion joined by then-Judge Orie Melvin and Judge Shogan. The dissent noted that the Superior Court should be reluctant to expand tort liability in the absence of clear guidance from either this Court or the General Assembly. The dissent predicted that, based on Pistone, in which this Court adopted what the dissent described as a “narrow test” for determining which underlying actions by a physician might trigger malpractice insurance coverage, this Court would likely decline to recognize
This Court granted appellant’s petition for allowance of appeal, limited to a single issue respecting duty, which we rephrased as follows:
Whether, for purposes of determining professional negligence, a general practitioner who provides mental health treatment to a patient is held to the same higher duty as a specialist in psychiatry or psychology?
603 Pa. 430, 984 A.2d 935 (2009). This is a pure question of law; thus our scope of review is plenary and our standard of review is de novo. Castellani v. Scranton Times, L.P., 598 Pa. 283, 956 A.2d 937, 943 (2008).
Appellant argues that the “well-established” distinction between the duty owed to patients by general practitioners and the particularized duty owed by mental health professionals should be maintained in this case. Thus, the mere fact that appellee-wife alleges that appellant treated her for psychological problems is no basis to apply a standard of medical care applicable to mental health specialists. Appellant also posits that the Superior Court majority failed to apprehend “the import of the transference phenomenon.” Appellant describes the transference phenomenon as a process recognized in specialized mental health treatment wherein the patient displaces onto the therapist various feelings, attitudes, and attributes that properly belong to a significant attachment figure from the patient’s past, usually a parent, and the patient responds to the therapist accordingly. Citing cases from Minnesota, New York, and North Carolina, appellant stresses that transference is central to the patient-psychotherapist relationship, and in fact is an expected and accepted part of treatment for which mental health professionals receive particular training; and it is for that reason that some courts have held that a mental health professional’s sexual relationship with a patient may be actionable as medical malpractice.
Citing cases from Washington, Massachusetts, Nebraska, and Minnesota, appellant argues that transference is not a component of the general practitioner-patient relationship and that courts have been disinclined to impose professional liability premised upon a consensual sexual relationship between a general practitioner and a patient. Appellant cites Long for the proposition that the Superior Court has also declined to extend the heightened “burdensome duty” borne by mental health professionals to general practitioners, and Pistone for the proposition that this Court has at least recognized transference as a unique component of specialized mental health services.
Appellant adds that holding general practitioners to a mental health specialist’s duty of care standard simply because they are often “the first stop” in a patient’s medical care runs counter to well-established tort law constructs and also to the reality that managed healthcare today often requires a patient to see a general practitioner before specialized care can be obtained or referrals made: “[A] general practitioner often has no choice but to be the threshold contact in treating any condition, including complaints of depression or anxiety.” Appellant’s Brief at 18.
Appellant further asserts that this case is a particularly unsuitable vehicle for enlarging the potential liability faced by general practitioners because appellees’ allegations regarding the mental health treatment he provided were particularly thin. Appellant notes that appellees’ complaint offers great detail as to the nature and occurrence of the sexual encounters, but contains only a “single, passing suggestion,” devoid of detail, positing that appellant was treating appellee-wife for depression and anxiety. Appellant adds that the expert report appended to appellees’ complaint indicates only that appellant prescribed antidepressants to appellee-wife and referred her to outside mental health counseling during a few visits that occurred during an isolated period of time long before their consensual sexual relationship began in the spring of 2002.
In response, appellees argue that overwhelming medical and judicial authority considers any and all sexual contact between physicians and patients to be both unethical and a basis for medical malpractice liability because, in certain circumstances, the sexual contact results from the course of treatment and from the physician’s misunderstanding or misuse of the appropriate treatment method, which results in harm to the patient. Appellees assert that this most frequently occurs when a physician fails to properly manage transference. Citing cases from Oklahoma, the District of Columbia, and Nevada, appellees posit that liability may be imposed in such instances and that it is irrelevant whether the physician is a mental health professional or a general practitioner. Appellees note that the basis for their theory is that sexual contact between a physician providing mental health care and the patient receiving that care is directly related to the mental or emotional treatment involved (as opposed to a simply physical condition) and it may be expected that the sexual contact will exacerbate the patient’s vulnerable mental and emotional condition and therefore cause him or her further harm.
In them brief, appellees also point to significant recent increases in the number of general practitioners who treat patients for mental and emotional conditions. Ap-pellees cite their expert’s reference to a study published in the New England Jour
Appellees also assert that their theory is consonant with this Court’s supposed recognition that “the transference phenomenon, which sets the stage for the improper relationship between therapist and patient, is the result of the treatment itself.” Id. at 17 (quoting discussion in Pistone of other cases). Appellees claim that their allegations “exactly fit[]” what they call “the Pistone standard of professional negligence”: appellant was treating and medicating appellee-wife for depression and anxiety; she exhibited classic signs of transference during the treatment; when she manifested transference by expressing her feelings to appellant, the sexual relationship commenced; and appellant maintained the relationship even as his patient’s emotional health deteriorated. Appellees argue that appellant failed to properly recognize, diagnose, and treat appellee-wife’s transference. Appel-lees assert that appellant should have treated appellee-wife appropriately or, at least, declined to practice “therapeutic techniques beyond the scope of his competence” and referred her directly to a trained psychotherapist. These failures on appellant’s part, appellees claim, led directly to appellee-wife’s increased mental and emotional distress.
Appellees add that the cases from other jurisdictions cited by appellant are either mischaracterized or distinguishable; ap-pellees proffer their own cases where general practitioners provided mental health services to patients, then engaged in sexual relationships with those patients, and were deemed subject to malpractice liability. To appellees, the fact that appellant did not hold himself out as a mental health professional is irrelevant because the determination of duty must focus on what appellant actually has done and how he conducted himself with his patient.
Respecting the Althaus factors, appel-lees assert that: (1) the increasingly common situation where general practitioners provide mental health care and treatment involves an unequal relationship requiring protection for vulnerable patients; (2) the social utility in general practitioners providing mental health treatment must be matched by ensuring strict boundaries against sexual contact with patients, which can harm patients and has no social utility; (3) the risk posed by such sexual activity is potentially devastating to the patient, and also highly foreseeable; (4) imposing a heightened duty on general practitioners in this context will protect physicians as well as patients, since physicians should be aware of the necessary boundaries and should seek additional training before addressing their patients’ mental health issues; and (5) the overall public interest in protecting against doctors who harm patients through inappropriate sexual activity will be served by holding general practitioners to the higher duty in these cases.
Appellees add that Pennsylvania’s Medical Practice Act of 1985, 63 P.S. §§ 422.1-422.51a, does not support the concept of different duties for physicians who provide the same kind of care. Appellees read the Act to provide that while a doctor may practice or specialize in a field like psyehi-
In his reply brief, appellant critiques appellees’ reliance on the transference phenomenon as an attempt to sidestep the reality that his sexual relationship with appellee-wife was consensual and that his tangential treatment of her mental and emotional issues lacked the purposeful use of transference such that imposition of a mental health professional’s duty to avoid sexual contact might be warranted. Appellant argues that appellees’ current argument that he, in some manner, “incorporated transference as a treatment component,” is a vague and conclusory allegation that is not of record and which was adverted to only in a “single, passing reference” in the complaint.
We turn now to the claim before us. In the medical professional negligence context, we have noted that: “to establish a prima facie case of malpractice, the plaintiff must establish (1) a duty owed by the physician to the patient (2) a breach of duty from the physician to the patient (3) that the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) damages suffered by the patient that were a direct result of that harm.” Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888, 891 (1990); see also Stimmler v. Chestnut Hill Hosp., 602 Pa. 539, 981 A.2d 145, 154 (2009) (same). Ultimately, to prove duty and breach, the plaintiff must show “that the act of the physicians or hospital fell below the standard of care” owed to the plaintiff as a patient. Brannan v. Lankenau Hosp., 490 Pa. 588, 417 A.2d 196, 199 (1980). This case hinges upon the first element of the proffered tort: whether a general practitioner who provides some degree of mental or emotional treatment to a patient should be subject to what has been posed as a mental health professional’s “heightened” standard of care, which, it is further alleged, entails a specific and strict duty to avoid sexual relations with patients.
The question of duty in tort is “a legal determination, assigned in the first instance to the trial court and subject to plenary appellate review.” Sharpe v. St. Luke’s Hosp., 573 Pa. 90, 821 A.2d 1215, 1219 (2003). As the Superior Court recognized, this Court in Althaus explored the concept of legal duty in the context of a medical malpractice suit brought against a psychiatrist by a teenaged patient and her parents. The patient initially alleged that her father had sexually abused her, which led to an investigation and sexual abuse charges against both parents that were
In determining whether a duty to the patient’s parents existed in Althaus, this Court set forth factors a court must consider in deciding whether a duty is to be imposed upon a given defendant: “(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 1169. Accord Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 866 A.2d 270 (2005). The Bilt-Rite Court, further quoting Althaus, summarized “the traditional considerations of public policy involved in any assessment of the existence of a duty of care”:
[I]t must be remembered that the concept of duty amounts to no more than the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection from the harm suffered.... To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times. The late Dean Prosser expressed this view as follows:
These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that .it serves none. In the decision whether or not there is a duty, many factors interplay: [t]he hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.
866 A.2d at 280-81 (internal citations and quotation marks omitted).
The well-settled standard of care for a general medical practitioner is to “possess and employ in the treatment of a patient the skill and knowledge usually possessed by physicians in the same or a similar locality, giving due regard to the advanced state of the profession at the time of the treatment; and in employing the required skill and knowledge he is also required to exercise the care and judgment of a reasonable [person].” Donaldson v. Maffucci, 397 Pa. 548, 156 A.2d 835, 838 (1959). Accord Toogood v. Owen J. Rogal, D.D.S., 573 Pa. 245, 824 A.2d 1140, 1150 (2003) (“A physician owes his patient a duty to employ that degree of knowledge, skill, and care ordinarily possessed by members of the medical profession. There is no requirement that he be infallible, and making a mistake is not negli
By contrast, this Court has not yet spoken specifically to whether medical specialists should be held to “heightened” standards of care in their particular fields, which is a predicate assumption encompassed within appellees’ theory of their case. The Superior Court, however, has generally held that “a specialist physician is held to a higher standard of care than a general practitioner when the specialist is acting within his or her specialty” and that the specialist “is expected to exercise that degree of skill, learning and care- normally possessed and exercised by the average physician who devotes special study and attention to the diagnosis and treatment of diseases within the specialty.” Winschel v. Jain, 925 A.2d 782, 797 (Pa.Super.2007); Maurer v. Trustees of Univ. of Pennsylvania, 418 Pa.Super. 510, 614 A.2d 754, 758 (1992) (en banc) (same).
Since this Court has not yet spoken directly to the question, consideration of what jurisprudence our sister states have determined to be applicable is helpful. In addition to Pennsylvania, it appears that all, or nearly all, jurisdictions in the United States have authority that would hold medical specialists to some differentiated or heightened standard of care compared to that governing general practitioners, especially where practitioners hold themselves out as specialists or are board-certified in a specialized field. There is significant variation in the applicable standard, or rather, in the manner of expressing the distinct test. Courts in fourteen states and the District of Columbia have expressly adopted a “national” standard of care for doctors who hold themselves out as specialists in a given area of medicine; these practitioners are held to the same standard of care as any other specialist practicing in the same specialty in the United States.
As a matter of logic and practicality, we query whether the characterization of a specialist’s duty of care as “higher” or “heightened” is particularly useful. Rather, it seems that the theory of recovery fits neatly within the usual approach to malpractice cases, but with a practical and powering recognition that the medical duty at issue must be calibrated to account for what may reasonably be expected of medical specialists. Put another way, to hold a medical specialist, to the standard of care governing his specialty may articulate a duty that is different, distinct, and more precise than that governing a general practitioner, but the targeted duty is not thereby “heightened.” The test is still normative, comparative, and powered by
Appellees’ specific theory concerning a “heightened” duty for general practitioners in this circumstance depends upon a second predicate assumption respecting mental health specialists, which is that the standard of care governing that practice area necessarily and strictly prohibits mental health professionals from engaging in sexual relations with patients, and that accordingly, tort liability may properly arise from deviations from that proffered prohibition. But, neither the Pennsylvania General Assembly nor this Court has yet recognized such a prohibition as part of the duty of mental health professionals for purposes of liability for damages in tort.
Likewise, no Superior Court decision has held that the duty of care owed by mental health professionals to their patients embraces a strict proscription against sexual affairs, such that a breach may result in tort liability. The Long court did not purport to find such a duty under Pennsylvania law; rather, it merely discussed the non-binding North Carolina case exclusively relied upon by the plaintiff and distinguished that case on multiple grounds, including that the case spoke of a psychiatrist’s special duty under North Carolina law, while Long involved a general practitioner. The Superior Court has discussed the theory in another case involving a malpractice action brought against a psychiatrist by a patient prem
Courts in those other states that have addressed the prospect of tort liability arising from a mental health professional’s consensual sexual conduct with a patient have largely held that such a claim may indeed be viable. In these jurisdictions, the cause of action is often tied to the mental health professional’s alleged mishandling of transference, which occurs when a therapist encourages a mental health patient to “displace” feelings regarding other figures in the patient’s life, often parents, onto the therapist. The therapist is trained to manage and use transference as a therapeutic tool.
A typical case, often cited by courts considering this point, is St. Paul Fire & Marine Insurance v. Love, 459 N.W.2d 698, 702 (Minn.1990), in which the defendant, a licensed psychologist, engaged in a sexual relationship of several months’ duration with the plaintiff, a married female who was the defendant’s patient. After the affair was discovered by the plaintiffs husband, who was also being counseled by the defendant, the couple sued for malpractice. The defendant’s malpractice insurer filed a declaratory judgment action to determine coverage; the trial court found that the policy in question did not provide coverage, but the intermediate appellate court reversed. The Supreme Court of Minnesota accepted the case on the coverage question and in the course of its analysis, stated that the underlying conduct by the defendant amounted to the negligent mishandling of transference and, because transference is so closely bound to the patient-therapist dynamic, the defendant had committed professional malpractice when he involved himself sexually with his patient: “The medical and legal communities uniformly agree that a psychiatrist’s mishandling the transference phenomenon during treatment and taking sexual advantage of his patient is malpractice or gross negligence.” 459 N.W.2d at 700 (citing Louisell & Williams, 2 Medical Malpractice ¶ 17A.27, at 85 — 86).
Some states have codified the tort. Illinois, for example, has a broad version of the action applying to psychotherapists, as well as to both licensed and unlicensed mental health professionals. Thus, the “Sexual Exploitation in Psychotherapy, Professional Health Services, and Professional Mental Health Services Act,” Ill. Comp. Stat. 740/140-2 (1989, amended 1997), recognizes, in pertinent part, that “[a] cause of action against a psychotherapist, unlicensed health professional, or unlicensed mental health professional for sexual exploitation exists for a patient or former patient for injury caused by sexual contact with the psychotherapist, unlicensed health professional, or unlicensed mental health professional.” California has a narrower enactment, limited to psychotherapists, embracing psychiatrists as well as both licensed clinical social workers and associate clinical social workers who may not yet be licensed. Thus, California Civil Code § 43.93(b) (2003) provides that: “A cause of action against a psychotherapist for sexual contact exists for a patient or former patient for injury caused by sexual contact with the psychotherapist.” A handful of other states have adopted statutory enactments in this vein. See Minn.Stat. §§ 604.20, 604.201 (1986) (applies to “physician, psychologist, nurse, chemical dependency counselor, social worker, member of the clergy, marriage and family therapist, mental health service provider, licensed professional counselor, or other person, whether or not licensed by the state, who performs or purports to perform psychotherapy”); N.C. Gen.Stat. §§ 90-21.41, 90-21.42 (1999) (applies to licensed psychiatrist, psychologist, licensed professional counselor, substance abuse professional, social worker engaged in clinical social work practice, fee-based pastoral counselor, licensed marriage and family therapist, or mental health service provider, who performs or purports to perform psychotherapy); Wis. Stat. § 895.441 (1986) (applies to “physician, psychologist, social worker, marriage and family therapist, professional counselor, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed or certified by the state, who per
Significantly, the parties have not identified, and our research has not disclosed, a single jurisdiction that has squarely rejected the view that a mental health professional’s conduct in engaging in a sexual affair with a patient is actionable in tort. The most that can be said, in counterpoint, is that some state courts have been reluctant to view such conduct as malpractice, even where some evidence of transference is presented. In Roe v. Jefferson, 875 S.W.2d 653 (Tenn.1994), Tennessee’s high court decided against a plaintiff on statute of limitations grounds, but also expressed ambivalence about allegations of transference in the malpractice context: “Initially, this Court has serious reservations about the Court of Appeals’ reliance on the transference phenomenon in this case. This phenomenon, although generally accepted in the field of psychotherapy, is susceptible to many differing interpretations and has not yet been completely verified by quantitative, objective studies.” Id. at 657 (citation omitted). And, in Carmichael v. Carmichael, 597 A.2d 1326 (D.C.1991), the District of Columbia appellate court reversed a trial court’s entry of judgment on a malpractice claim against the defendant psychologist, who had engaged in consensual sexual relations with his patient; the patient subsequently suffered depression and angst, and exhibited suicidal tendencies. In the Carmichael court’s view, the evidence presented to the trial court was insufficient to pinpoint any malpractice on the defendant’s part as the primary cause of the plaintiffs injuries, even if it was likely that some “transference abuse” had occurred: “the symptoms identified as consistent with [defendant’s] malpractice were also consistent with the symptoms arising from other circumstances connected with [plaintiffs] childhood and relations with her parents. Under these circumstances, [plaintiffs expert’s] testimony does not reflect a sufficiently certain opinion that the malpractice caused [plaintiffs] psychological injuries.” Id. at 1330. Roe and Carmichael involved mental health specialists, which makes them inap-posite here, but they provide some skeptical counterweight to the far greater number of jurisdictions which, to date, have viewed the misuse of transference by mental health specialists as a basis for tort liability.
Given the existing weight of legal authority, and the apparent common acceptance of the transference phenomenon as a conscious therapeutic model for mental health professionals, which those specialists know (or should know) may have consequences making their patients particularly vulnerable to sexual exploitation, we will accept, for purposes of decision, appel-lees’ second predicate assumption: that Pennsylvania would hold mental health professionals to a standard of care which would include a duty to avoid sexual contact with their patients.
Other states have reached similar conclusions. See, e.g., Gunter v. Huddle, 724 So.2d 544, 546 (Ala.Civ.App.1998) (“[Tjhe great weight of authority holds that a sexual relationship between a nonpsychiatric physician and a patient is outside the scope of the physician’s treatment, and is not actionable as malpractice”) (collecting cases from California, Minnesota, and Oregon); Atienza v. Taub, 194 Cal.App.3d 388, 239 Cal.Rptr. 454, 456-58 (1987) (malpractice claims against physician who treated plaintiff for phlebitis and then engaged in affair with plaintiff did not state cause of action); Collins v. Covenant Mut. Ins. Co., 604 N.E.2d 1190, 1196-97 (Ind.App.1992) (collecting cases from Idaho, Michigan, Minnesota, South Carolina, and Washington; opinion ultimately vacated on procedural grounds not relevant to merits);
The circumstances giving rise to appeal in the case sub judice occur in the grey area between purely physical medical care and mental and emotional care, which may entail a broad range of treatments from simple counseling, to a single prescription by a general practitioner to treat a regular patient’s occasional anxiety (perhaps a sleep disorder or fear of flying), to comprehensive and sustained treatment by mental health specialists to address serious psychological illnesses such as schizophrenia and bipolar disorder.
There is, then, some basis in the decisional law of other states for the premise that appellees forward here — that the duty of mental health professionals to avoid exploitative sexual relationships with then.- patients should be extended to general practitioners if those practitioners take on the responsibility of tending to their patients’ mental and emotional issues. To determine whether to impose that particularized duty upon general practitioners as a matter of Pennsylvania common law, we look to the Althaus factors, which consider: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk involved 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. Id. at 1169.
Concerning the first Althaus factor, the relationship between the parties, the Superior Court opined that patients are on “unequal playing fields” with their doctors, who possess superior knowledge of medicine and health. Thierfelder, 978 A.2d at 366. That is true in most, but not all cases, and it is certainly true in this case. Where present, we do not doubt that this relative disparity gives rise to a relationship based on trust and the general duty of care that any doctor owes to his patients. As explained above, when the relationship is one centered in the rendering of psychotherapy, the patient is in a particularly vulnerable mental and emotional state, which has caused courts to recognize a particularized duty on the part of the mental health professional to, at the least, refrain from any action or activity that would worsen the patient’s insecurities and fears. According to the cases and secondary literature addressing transference, it can be a powerful therapeutic tool, and mental health professionals employing transference must take pains to facilitate and direct it when it occurs in their patients. Courts that have imposed a duty upon mental health professionals to avoid sexual
But, the relationship between the parties is not the same where the mental health treatment is incidental and rendered by a general practitioner; in such circumstances, the first Althaus factor weighs against holding general practitioners to the specialized duty that prohibits mental health professionals from engaging in sexual relations with their patients.
The second Althaus factor is the social utility of the doctor’s conduct. Obviously, sexual activity between a general practitioner and a patient has no social utility in and of itself. But, under appellees’ theory,
The third Althaus factor is the potential risk and foreseeability of harm stemming from sexual relations between general practitioners and their patients if there has been some component of mental and emotional counseling in the course of the doctor’s care. The risk and harm that can ensue if a mental health professional takes sexual advantage of his or her psychotherapy patients’ vulnerability and transference of feelings to the therapist has been documented in the cases accepting the tort against mental health professionals for the negligent management of transference. In some states, a mental health professional’s exploitation of transference to engage in sexual relations with a patient, if undertaken in an intentional manner, has effectively been deemed to be predatory conduct warranting criminalization. But, a general practitioner unfamiliar with transference, or less familiar with the effects of the treatment, or who is not deliberately employing the technique in undertaking basic or situational care of a patient’s mental and emotional difficulties, is less likely to foresee that an apparently consensual sexual affair with the patient may risk worsening the patient’s psychological problems and even create new doubts, anxieties, and agitations.
Next we consider the consequence of burdening general practitioners who provide patients with some degree of incidental base-level mental and emotional care with a mental health professional’s absolute duty to refrain from sexual involvement with patients. As noted in our discussion of social utility, in today’s world, it is common for general practitioners to provide their patients with some form of front-line mental or emotional care; and this care may go so far as to include the prescription of medications to relieve stress-induced anxiety and even antidepressants. The proffered duty and tort would impose significant consequences on general practitioners rendering such care who become sexually involved with a patient, solely because of incidental mental health treatment. Ours is a fluid and complex society, where concepts of free will and personal responsibility hold some sway. The prophylactic absolute duty of avoidance of sexual contact proffered here excises those concepts in one narrow situation deriving from the special circumstances, vulnerability, and potential exploitation that may arise from a course of mental health treatment, based upon a phenomenon familiar to specialists in the field. To hold general practitioners providing incidental care to that same standard would have the effect of discouraging general practitioners from rendering what appears to have become, by now, relatively routine attention to their patients’ mental and emotional well-being. This is not to diminish the individually devastating consequences a sexual affair with one’s primary care physician might have for a mentally and emotionally fragile patient. At the least, this again is a question of policy not particularly suited to common law resolution by the judiciary. As such, we view this Althaus factor to weigh against imposition of a mental health professional’s duty regarding sexual contact with patients upon general practitioners.
Finally, we turn to the question of the public interest in appellees’ proposed “solution” of extending a mental health specialist’s duty to refrain from sexual involvement with patients to general practitioners who undertake some inci
Having considered all of the Althaus factors, we decline to expand the potential malpractice liability of general practitioners to include an absolute duty, derived from the duty of mental health specialists, to avoid sexual relations with patients in circumstances where they have rendered some degree of mental and emotional treatment to the patient. To do so would be to go too far, at least for purposes of expanding tort liability through common law decision-making. To do so would also improperly blur the still-meaningful distinction between the standards and duties of care borne by specialists and general practitioners. Furthermore, as our analysis above has demonstrated, the question presented implicates broad and complicated concerns of social policy involving the liability of physicians that are not particularly well suited to resolution by judicial decision. In our view, any further adjustment in this particular, narrow area is a question better suited to the policy-making branches, including the General Assembly and the Commonwealth’s boards and associations charged with regulating the medical profession. This position goes no farther than recognizing that the “classic” form of medical malpractice is not easily distilled in the increasingly common con
We recognize and respect that Justice Todd’s dissent would balance the Althaus factors differently. However, we must register our respectful disagreement, as we have throughout this Opinion, with the dissent’s mischaracterization of our balancing effort and holding as an “alteration” of the applicable test, rather than an application with which the dissent happens to disagree. See, e.g., Dissenting Op. at 1280, 1283, 1285. First, our holding does not forever bar the potential for finding a duty of care when a doctor who is not a mental health specialist undertakes mental health treatment with a patient and then engages in sexual relations with that patient. Rather, the question accepted for review, which our deliberations have revealed is not as simple as it might initially seem, is whether to extend a per se duty that would apply to mental health specialists to general practitioners, in order to support a claim for money damages. As Justice Todd’s dissent itself recognizes and reiterates, professional disciplinary action remains possible, and as we have noted above, other actions in tort may remain available in cases such as this. Our disposition to remand does not foreclose pursuit of any such claims that may have been preserved and not yet addressed by the Superior Court. Second, the dissent’s formulation suggests that the question of duty we decide involves a sexual relationship pursued, perhaps purposefully, as part of appellant’s “treatment” of appellee for mental health problems. We do not understand the complaint as pursuing that theory; and, in any event, the duty we are asked to embrace is much broader, and not confined to that circumstance. The dissent’s formulation of the issue before us may ring well as an aphorism; but, it is an inaccurate deseription of the Court’s holding and analysis, which hardly advances our deliberations.
Application of our holding is straightforward. The facts as alleged by appellees— the occurrence of some degree of mental and emotional care by appellant and a sexual relationship between appellant and appellee-wife — do not establish that appellant violated his duty of card to appellees, which was that of a general practitioner and not that of a mental health specialist precluded from engaging in sexual relations with a patient. In holding otherwise, the Superior Court held appellant to a novel duty and standard, which we reject.
The question is not whether this Court condones appellant’s actions, nor even whether his actions amounted to a violation of medical ethics. We hold here only that, as a general practitioner, appellant was under no specific or “heightened” duty in tort to refrain from sexual relations with his patient under these circumstances. Accordingly, we vacate the order of the Superior Court and remand for consideration of any remaining preserved claims that may persist in this litigation. Jurisdiction is relinquished.
Justices SAYLOR, EAKIN, BAER, and McCAFFERY join the opinion.
Justice TODD files a dissenting opinion.
. The institutional defendants have been dismissed and are not parties to this appeal; appellant is the sole remaining defendant.
. Transference, which will be discussed at length infra, has been described as: "[t]he process whereby the patient displaces onto the therapist feelings, attitudes and attributes which properly belong to a significant attachment figure of the past, usually a parent, and responds to the therapist accordingly.” St Paul Fire & Marine Ins. v. Love, 459 N.W.2d 698, 700 (Minn.1990) (quoting S. Waldron-Skinner, A Dictionary of Psychotherapy 364 (1986)).
. This appeal presents a specific question concerning appellees’ professional negligence/medical malpractice claim alone. As will be discussed infra, it is not clear from the record and presentations before us which, if any, of appellees' various other claims remain preserved and require further action by the Superior Court.
. The trial court dismissed appellee-husband’s direct claims and appellees do not challenge that disposition.
. The Superior Court did not separately address appellees' claims sounding in ordinary negligence and it is unclear whether those claims were preserved for consideration on appeal. Our remand includes instructions that the Superior Court determine whether any such claims properly remain.
. The panel included Judges Klein, Gantman, and Kelly. Judge Gantman concurred in the result and Judge Klein filed a dissenting memorandum.
. In Pistone, the plaintiff was being treated at a hospital for gallstones when Dr. Pistone, one of her treating doctors, entered her room, closed the privacy curtain around the bed, and then fondled the plaintiff’s breasts, exposed his genitals to her, and masturbated in front of her. When the plaintiff sued, the doctor’s professional liability insurer denied coverage and refused to defend or indemnify him. This Court held that in the insurance context, covered “professional health care services” were limited to actions involving "a medical skill associated with medical training,” and the doctor’s actions with regard to the plaintiff were not so associated. 726 A.2d at 344. Accordingly, the insurer was not bound to indemnify or defend the doctor.
. The Pistone Court, in dicta, referenced transference when describing various types of tests used by courts in other states to determine whether a physician's sexual conduct
. Madame Justice Todd's Dissenting Opinion asserts that the Court manipulates the question presented to divorce the analysis from the facts and introduce unwarranted complication while, at the same time, shutting the door to potential future cases where a finding of duty may be warranted. Dissenting Opinion at 1281-82 n. 3, 1282 n. 5. As will be further developed infra, this is not so. We have endeavored to render a determination that springs from the facts before us in this appeal, while recognizing that our task is not simply to decide this case, but also to provide guidance upon the broader legal issue, which is of first impression. By necessity, this undertaking requires breadth of vision and consideration of both sides of the coin: the facts of a given case on one side, and the law, which will almost always be more conceptual, on the other.
. Notably, the Toogood formulation omits consideration of the defendant doctor's “locality,” which many jurisdictions no longer emphasize in the modern era.
. See Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d 254, 257-58 (Ala.1982); Smethers v. Campion, 210 Ariz. 167, 108 P.3d 946, 950 (Ariz.Ct.App.2005); Hall v. Frankel, 190 P.3d 852, 858 (Colo.App.2008); Smith v. Andrews, 289 Conn. 61, 959 A.2d 597, 602 (2008); Hill v. Medlantic Health Care Group, 933 A.2d 314, 325 (D.C.2007); Roberts v. Tardif, 417 A.2d 444, 451-52 (Me.1980); Estate of Northrop v. Hutto, 9 So.3d 381, 384 (Miss.2009); Chapel v. Allison, 241 Mont. 83, 785 P.2d 204, 207 (1990); Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1191, 1194-95 (1979); Spencer By and Through Spencer v. Seikel, 742 P.2d 1126, 1128 (Okla.1987); Mosley v. Owens, 108 Or.App. 685, 816 P.2d 1198, 1201-02 (1991); Moultrie v. Med. Univ. of South Carolina, 280 S.C. 159, 311 S.E.2d 730, 731 (1984); Veith v. O’Brien, 739 N.W.2d 15, 29 n. 23 (S.D.2007); Walker v. Sharma, 221 W.Va. 559, 655 S.E.2d 775, 780-81 (2007); Pina v. Christensen, 206 P.3d 1298, 1301 (Wyo.2009).
. See Zaverl v. Hanley, 64 P.3d 809, 817 (Alaska 2003) (common law); Scott v. Rayhrer, 185 Cal.App.4th 1535, 111 Cal.Rptr.3d 36, 46 (2010) (construing CACI (California standard jury instruction) No. 502); Tyler v. Dworkin, 747 A.2d 111, 124 (Del.Super.Ct.1999) (construing Del.Code. Ann. Tit. 18, § 6801 (1976) (amended 1998)); Pemberton v. Tallahassee Mem'l Reg’l Med. Ctr., Inc., 66 F.Supp.2d 1247, 1255 n. 21 (N.D.Fla.1999) (construing Fla. Stat. § 766.102 (1976) as amended in 1997); McDaniel v. Hendrix, 260
. See Mitchell v. Lincoln, 366 Ark. 592, 237 S.W.3d 455, 459 (2006) (construing "same or similar locality” in Ark.Code Ann. § 16 —114—206 (1979)); McDaniel v. Inland Northwest Renal Care Group-Idaho, LLC, 144 Idaho 219, 159 P.3d 856, 859 (2007) (construing "community standard” in Idaho Code Ann. § 6-1012 (1976)); Cox ex rel. Cox v. Bd. of Hosp. Managers for City of Flint, 467 Mich. 1, 651 N.W.2d 356, 364 n. 17 (2002) (construing "community standard” in Mich. Comp. Laws § 600.2912a (2000)); Hoffart v. Hodge, 9 Neb. App. 161, 609 N.W.2d 397, 406 (2000) (construing “same or similar locality” in Neb.Rev. Stat. § 44-2810 (1976)); Vigil v. Miners Colfax Med. Ctr., 117 N.M. 665, 875 P.2d 1096, 1099 (N.M.Ct.App.1994) (pursuant to uniform jury instructions, specialists have heightened duty compared to general practitioners but in both instances "due consideration” is given to locality); Hopkins v. McBane, 427 N.W.2d 85, 86 (N.D.1988) (stating "similar localities” standard); Stovall v. Clarke, 113 S.W.3d 715, 722-23 (Tenn.2003) (construing "same or similar community” in Tenn.Code Ann. § 29-26-115(a) (1975)); Smith v. Irving, 268 Va. 496, 604 S.E.2d 62, 65 (2004) (construing statewide standard of care expressed in Va. Code. § 8.01-581.20 (1992)); Bauer v. White, 95 Wash.App. 663, 976 P.2d 664, 666 (1999) (construing statewide standard expressed in Wash. Rev.Code § 7.70.040(1) (1983)).
. Pennsylvania decisional law has recognized that inappropriate sexual contact with a patient may be grounds for action by Pennsylvania's various disciplinary and ethics boards governing mental health professionals, based on 49 Pa.Code § 41.81(a) (“Sexual intimacies between a psychologist and a current client/patient, or an immediate family member of a current clienl/patient, are prohibited."). See Starr v. State Bd. of Med., 720 A.2d 183 (Pa.Cmwlth.1998) (affirming revocation of psychiatrist’s license for engaging in sexual relations with patients in violation of Medical Practice Act of 1985, 63 P.S. § 422.41(8)); Morris v. State Bd. of Psychology, 697 A.2d 1034 (Pa.Cmwlth.1997) (affirming revocation of psychologist's license for engaging in sexual relations with patient in violation of Professional Psychologists Practice Act, 63 P.S. § 1208(a) and Code of Ethics, 49 Pa.Code § 41.61) (Principle 6, Section (b)); Giddings v. State Bd. of Psychology, 669 A.2d 431 (Pa.Cmwlth.1995) (affirming suspension of psychologist's license for having sexual relationship with patient in violation of Code of Ethics).
. Courts that have explored transference in some depth generally view it as a concept developed by Sigmund Freud, but transference has also been defined somewhat more generally as “an experience in the present that resembles one from the past [and that] can trigger similar feelings and confusions.” In re Greene, 204 P.3d 285, 295 (Wyo.2009).
. States which have addressed this specific point have generally allowed a cause of action in malpractice to proceed when allegations
. Some states have gone further and adopted criminal statutes addressing the problem of mental health professionals who engage in sexual contact or conduct with patients; these statutes categorize such conduct as felonious. See, e.g., Ariz.Rev.Stat. § 13-1418; Colo.Rev.Stat. § 18-3-405.5; Fla. Stat. § 491.0112; S.D. Codified Laws §§ 22-22-27 through 22-22-29.
. We make the assumption for decisional purposes only because we need not do more to decide this case, which does not involve a mental health specialist, and also because we believe the caution expressed by the Roe court is well-taken. The judicial branch is not as well-equipped as the legislative branch to plumb the operation, scope, and consequences of the transference phenomenon, (especially in this appeal, which presents only a preliminary record), and reliance upon purely secondary sources for purposes of establishing a newly recognized duty for mental health professionals would be premature.
. Justice Todd's Dissenting Opinion makes much of the fact that Pennsylvania regulations governing state board certified medical doctors (aside from mental health professionals, who are covered by specific provisions) dictate that sexual relations between practitioners and patients are prohibited misconduct for which a doctor may be subject to disciplinary action under 16 Pa. Code §§ 16.61, 16.110. Dissenting Op. at 1281 n. 2 and passim. The task here, however, is to determine whether that standard, which derives from rules of professional conduct and principles set forth by state boards and also in the American Medical Association Code of Ethics, should be transported into the tort realm as a newly recognized cause of action, and whether any such expansion is properly a question for the judiciary, or might better be undertaken by the General Assembly and those professional boards that engage with this problem regularly. The dissent would conclude that in light of the extant standards within the medical field itself, we “may” undertake determination of this issue; the more properly framed question is whether we "should” do so.
. Justice Todd’s Dissenting Opinion ignores the practical reality that mental and emotional issues and care can and may occur along a broad spectrum, and focuses instead on what the dissent labels, without explication, "mental disorders.” See, e.g., Dissenting Op. at 1282-83 & n. 5. We have attempted to approach this case, presented on our discretionary docket, and representing our first foray into this area, with an appreciation of the complexities governing the absolute duty we are asked to recognize. Respectfully, the dissent’s oversimplification avoids the difficult mix of facts, law, and policy that the proposed per se duty presents, difficulties that we have attempted to navigate with care. Ironically, while faulting the Court for our alleged minimization of the types of mental health care that general practitioners increasingly provide, the dissent focuses exclusively on the more serious end of the mental health counseling and treatment spectrum, thus indulging the very error in approach for which it mistakenly criticizes the Court.
. Justice Todd's Dissenting Opinion supports judicial creation of a legal duty in this circumstance. See, e.g., Dissenting Op. at 1280, 1283 n. 6, 1289. At first blush, the duty in question seems relatively limited, and there is no question that the conduct at issue is disapproved within the medical profession and its adjudicative entities. But, the duty in civil tort law that the dissent would create is not actually limited in any meaningful fashion. Recognition of an absolute "duty” in general practitioners to refrain from sexual relations with patients they have treated for mental health issues establishes what amounts to a per se cause of action: showing both treatment and sexual relations proves the case, irrespective of other particulars of the relationship. Given that mental or emotional issues embrace a wide variety of maladies, and varying methods, levels and intensity of treatment, the duty the dissent would create, in practice, would be broader than the dissent implies.
. We have used the qualifier "incidental'' to distinguish the sort of treatment that arises during the course of a preexisting doctor-patient relationship, one not originally or usually involving mental health treatment, from the sort of targeted treatment rendered by a mental health specialist. This "incidental” mental health treatment may embrace a wide range of problems and care. Recognition of this distinction is not speculative, as Justice Todd’s Dissenting Opinion suggests. Indeed, the dissent would have it both ways: the care and duty is monolithic when the dissent formulates its rule, but episodic when it comes to criticizing the Court's approach. The dissent's per se duty apparently would embrace the most "incidental” of mental health treatment rendered by a general practitioner, a highly ambiguous situation upon which to base a tort claim.
. Justice Todd's disagreement with our balancing of the first Althaus factor, Dissenting Op. at 1283-85, loses sight of the fact that the duty we are asked to recognize in this case is a particularized one of absolute avoidance of sexual conduct, deriving from a specialized duty that applies to mental health professionals. The doctor-patient relationship, which we do not by any means minimize in this appeal, obviously remains, and serves as a basis for other theories sounding in medical malpractice alleging a breach of the doctor’s duty of care through improper diagnosis and treatment; and a general practitioner who undertakes to provide systematic and regular mental and emotional care to a patient may well be subject to liability in negligence if he or she mishandles the situation and worsens the patient’s mental and emotional state. But, in this appeal as presented to us, appel-lees seek a rule that would allow them to prove their case by operation of a par se "heightened” duty arising out of the mere nexus between some or any form of menial or emotional assistance that may be provided by a general practitioner and the occurrence of sexual relations between the doctor and patient. We are not persuaded in this case that the relationship between the parties supports importation of a per se duty from the mental health specialty into the realm of general practice.
. Justice Todd’s Dissenting Opinion defines the question of social utility in loaded fashion, as "the social utility of a physician having sexual relations with a patient while rendering treatment for mental disorders without legal consequences in tort,” and then accuses the Court of suggesting that “there is social utility in not prohibiting a physician from having sexual relations with a patient he is treating for mental disorders.” Dissenting Op. at 1285-87. As the discussion in text makes plain, the social utility recognized by the Court reposes in the important role general practitioners have come to serve in treating their patients' mental health issues. Our approach squares with Althaus. See 756 A.2d at 1170 ("Next, we must weigh the social utility of Dr. Cohen’s actions against the nature of the risk and foreseeability of harm. Unfortunately, child sexual abuse is a troubling reality in our society and reports of sexual abuse have substantially increased.... The need for prevention of child abuse is unquestionable, as is the importance of adequate psychological treatment for children who have been sexually abused. Thus, therapists who treat sexually abused children perform a valuable and useful activity to society.”). Obviously, not all such first-stop treatments by general practitioners result in sexual relationships; and the fact that sexual relationships arise in some cases does not eliminate the actual social utility involved in the readier availability of treatment. As such, the dissent fails to apply the correct analysis of the social utility factor.
. Justice Todd’s discussion of this Althaus factor notes that our analysis distinguishes between an "apparently consensual” sexual
. Justice Todd argues that this formulation downplays the care that a general provider may render to a patient suffering from a mental disorder and that it would not be onerous for common law courts to require general practitioners to refrain from sexual relations with a patient if the doctor has provided some form of mental health care to the patient; the dissent adds that a physician, aware of the professional opprobrium inherent in such conduct, should not view this as a deterrent to undertaking treatment of a patient who reports mental or emotional distress. Dissenting Op. at 1287-89. Respectfully, this misapprehends our approach, which takes pains to recognize that the sphere of doctor-patient relations, which is a subset of human interactions, is complex, and that in considering whether to recognize a new tort theory based on a previously unrecognized professional duty, it is this Court’s responsibility to consider broadly, yet carefully, before taking action.
. The claim for intentional infliction of emotional distress was dismissed via stipulation.
Dissenting Opinion
dissenting.
I respectfully dissent. Determining whether there should be a duty, and, thus, a cause of action in professional negligence, when the legislature has not spoken, presents challenging questions of social policy and protection from harm. As offered by the majority, quoting the late Dean Prosser, “[i]n the end the court will decide whether there is a duty on the basis
Even more deleterious is the majority’s alteration of the Althaus construct, which, as I explain below, will adversely impact future application of this test.
Initially, it is critical to note that this case comes to us at the preliminary objections stage. In reviewing a trial court’s grant of preliminary objections in the nature of a demurrer, all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are admitted as true for the purposes of review. The question presented by a demurrer is whether, on the facts averred, the law states with certainty that no recovery is possible. Where doubt exists as to whether a demurrer should be sustained, the doubt should be resolved in favor of overruling it. MacElree v. Phila. Newspapers, Inc., 544 Pa. 117, 124, 674 A.2d 1050, 1053-54 (1996).
While the majority provides great detail in the factual and procedural background of this matter, the core of this dispute is relatively straightforward. JoAnn Thier-felder contends in her complaint that she and her husband, David Thierfelder, were patients of Dr. Irwin Wolfert. Mrs. Thier-felder avers that the couple divulged to Dr. Wolfert details of their intimate relations so that Dr. Wolfert could provide appropriate medical care. According to Mrs. Thierfelder, Dr. Wolfert treated her for depression and anxiety and prescribed medication for her depression. Importantly, during the course of the physician/patient relationship, Mi’s. Thierfelder claims that Dr. Wolfert’s treatment and medication regimen caused her to believe that Dr. Wolfert had “cured” her, that she informed him that he was her “hero,” and that she believed that she was in love with him. Third Amended Complaint, at ¶ 13. Mrs. Thierfelder alleges that, after she informed Dr. Wolfert of her feelings, and while treating her for depression, Dr. Wol-fert began a sexual relationship with her. After the relationship became sexual, Mrs. Thierfelder maintains that she became in
Professional negligence, also referred to as medical malpractice, giving rise to liability in tort, consists of a “negligent or unskillful performance by a physician of the duties which are devolved and incumbent upon him on account of his relations with his patients, or of a want of proper care and skill in the performance of a professional act.” Quinby v. Plumsteadville Family Practice, 589 Pa. 183, 198, 907 A.2d 1061, 1070 (2006).
At issue in this appeal is the question of duty. Thus, for a patient to establish professional negligence under the circumstances of this case, the patient must establish that a general practitioner had a duty to not have sexual relations with a patient for whom he is providing treatment for a mental health disorder. Of course, if such a duty exists, a patient must also establish the physician breached that duty, the breach was the proximate cause of the patient’s injury, and the patient suffered damages as a result of that harm, in order for the patient to be able to obtain relief under a professional negligence theory.
In my view, fair application and proper weighing of the Althaus factors leads con
Relationship Between the Parties— Generally speaking, the relationship between a physician and a patient creates professional obligations and legal duties; and, as recognized by our Court for over 100 years, the relation is one of trust and confidence. See Smith v. Blachley, 188 Pa. 550, 554, 41 A. 619, 621 (1898). Moreover, a physician holds a position of superiority over a patient based upon his expertise and the patient’s vulnerable position in seeking care, which as noted involves, at its core, trust in the physician and the primacy of the patient’s well-being. This inequity is only exacerbated where a patient seeks care for mental health disorders, as did Mrs. Thierfelder. In my view, this close relationship and the heightened sensitivities in the context of treatment for mental health disorders logically counsels towards recognizing a legal duty to protect patients who suffer from mental health disorders from exploitation by a physician. Moreover, this approach to the first Al-thaus prong, and a conclusion that, at a minimum, this prong suggests the finding of a duty, is consistent with our Court’s prior case law.
Indeed, our landmark decision in Al-thaus emphasized the physician-patient relationship, in contrast to a therapist’s relationship with the patient’s parents: “Dr. Cohen’s professional relationship with Nicole [her patient] simply does not create the type of relationship between Dr. Cohen and Nicole’s parents to support the imposition of a duty of care. Thus, the therapeutic relationship between Dr. Cohen and Nicole created professional obligations and legal duties that related exclusively to her patient, Nicole.” 562 Pa. at 554, 756 A.2d at 1169-70. Moreover, this Court when faced with a far less substan
Based upon the close relationship at issue and our prior precedent, finding this factor weighs in favor of a duty should be without controversy. Yet, contrary to our prior precedent and foundational authority, the majority comes to the remarkable conclusion that even the physician-patient relationship fails to support finding a duty of care. Rather than analyzing the relationship between the parties, the majority instead amends the factor to focus on the type of care provided. Specifically, the majority asserts that, because “it is increasingly common for primary or general care physicians to advise patients on relatively common matters of emotional or mental import, like stress or depression, and also to prescribe widely-used medications for such conditions,” and because there is a “qualitative difference” between treatments by a general practitioner and a “dedicated course of therapy provided by a mental health professional,” this somehow changes the nature of the relationship of the parties. Majority Opinion at 1275.
First, to be clear, the majority today finds that the physician-patient relationship, one of the closest recognized in our law, and one so regarded that it enjoys evidentiary privileges,
The majority asserts the relationship analysis is different when considering treatment by a general practitioner and a mental health professional, offering this “is particularly so because a general practitioner is less likely than a mental health professional to recognize, understand, and employ transference as a conscious therapeutic method.” Id. The majority provides no basis for this broad conclusion. Moreover, and importantly, we are at the preliminary objection stage, and Mrs. Thier-felder pleads indicia of transference, and
Even assuming, arguendo, there are differences in treatment, this does not change the essential relationship between the parties — that of a physician in a position of superiority over a patient, and one based upon trust and confidence. Unlike the relationship between a physician and a third party, where we have found against recognizing a duty, see Althaus, here, there exists a close relationship between a physician who is providing treatment for a mental health disorder and a patient, a relationship founded upon trust and confidence, which strongly weighs in favor of recognizing a duty of care. In sum, not only does the majority improperly alter the focus of this prong of the Althaus test, it comes to the remarkable conclusion that the physician-patient relationship, one of the most private and confidential recognized in our law, does not counsel towards finding a duty of care.
Social Utility of Physician’s Conduct — While it is axiomatic that medical professionals contribute greatly to our society by providing care to those in need, the relevant inquiry regarding social utility is specific to the conduct in question. See, e.g., Lindstrom v. City of Corry, 563 Pa. 579, 585, 763 A.2d 394, 397 (2000) (analyzing social utility factor not based upon value of police work universally, but on utility of police officer’s attempt to apprehend a fleeing suspect); Forster v. Manchester, 410 Pa. 192, 197, 189 A.2d 147, 150 (1963) (cited in Althaus as foundation for social utility factor, focusing on specific type of investigation conducted by private detective, not social utility of private detectives in general). Thus, while'the majority shifts the focus, the relevant and precise inquiry sub judice involves the social utility of a physician having sexual relations with a patient while rendering treatment for mental health disorders.
In Pennsylvania, sexual contact between physicians and patients is deemed to be unprofessional, and it is expressly prohibited by the State Board of Medicine; violation of this prohibition subjects a physician to disciplinary action including the loss of his or her license. 49 Pa.Code §§ 16.61, 16.110. Importantly, this prohibition is reserved not only for mental health professionals, but rather applies to all medical practitioners. According to the profession’s ethical code, sexual relations between physician and patient “detract from the goals of the physician-patient relationship, may exploit the vulnerability of the patient, may obscure the physician’s objective judgment concerning the patient’s health care, and ultimately may be detrimental to the patient’s well-being.” American Medical Association Code of Medical Ethics § 8.14 (“Sexual Misconduct in the Practice of Medicine”). This is powerful, if not dispositive, evidence that the utilitarian value of a general practitioner having sexual relations with a patient, for whom he is providing mental health treatment, is minimal, if not non-existent. Thus, based upon the universal condemnation of sexual contact between a physician and a patient, in my view, the social utility of the physician’s conduct at issue favors recognizing a duty of care.
While recognizing that sexual activity between a general practitioner and a patient has no social utility “in and of itself,”
In my view, it is difficult, if not impossible, to reconcile the majority’s concern with “burdening]” these front line caregivers with the fact that, as noted above, sexual contact between physicians and patients is universally condemned, is deemed to be unprofessional, and is already expressly prohibited by the medical profession. Indeed, noticeably absent from the majority’s analysis of any of the Althaus factors is mention of this blanket prohibition. The struggle the majority faces is that, in analogous matters, our Court has had to analyze equally valuable but competing kinds of conduct in deciding whether to impose a duty. See, e.g., Emerich v. Phila. Ctr. for Human Dev., Inc., 554 Pa. 209, 720 A.2d 1032 (1998) (weighing warning of third party against threat of immediate risk of serious harm or death against confidentiality of communications with patient). By contrast, here, we are considering conduct which is universally condemned and proscribed by state regulation. There is little or no social utility in a physician having a sexual relationship with a patient for whom he is providing mental health treatment, and the “burdening” of the providing of care is a dubious proposition at best. Thus, in my view, this factor plainly weighs in favor of finding a duty.
Indeed, while the majority suggests the analysis is far more “nuanced” than this approach allows, distilled to its essence, the majority’s analysis of this factor rests upon the assumption, if believed, that if general practitioners have a duty not to engage in sexual contact with their patients, it will burden their providing treatment for mental health disorders. I believe this conclusion strains credulity, especially in light of the already existing prohibition on this conduct. Respectfully, in this matter, the analysis is much less complex and nuanced than the majority purports.
Nature of the Risk and Foreseeability of the Harm — In my view, there is a significant risk that a physician, holding a superior position over a patient suffering from a mental health disorder such as depression, who engages in a sexual relationship with that patient, does so to the detriment of his charge. Obviously, one who suffers from a mental health disorder such as depression, and who engages in a sexual relationship while being treated for such malady, may suffer substantial harm. In this matter, Mrs. Thierfelder has pled such harm. Moreover, under Althaus, we look to see if the defendant created the harm or foresaw the possibility of the harm. Althaus, 562 Pa. at 554, 756 A.2d at 1170. While merely allegations at this point, it is clear that, if proved to be true, Dr. Wolford “created” the harm that was suffered by Mrs. Thierfelder.
Moreover, the majority’s analysis is undermined by the fact that, in Pennsylvania, a general practitioner is licensed to practice mental health or psychiatric services, and to diagnose and provide psychiatric treatment, all without any residency or board certification in psychiatry or psychology. See Pennsylvania Medical Practice Act of 1985, 63 P.S. §§ 422.1-422.51a. In my view, when a general practitioner undertakes to render treatment to a patient for mental health disorders, which the physician is legally permitted to provide, it is not unreasonable for that physician to understand and know the basic consequences of such care.
While, as noted above, social utility is set forth as a discrete factor, and is properly analyzed as such, we also weigh the social utility of the conduct at issue against the factor concerning the nature of the risk and foreseeability of harm.
Consequences of Imposing a Duty on Physicians — As to the consequence of imposing a duty upon general practitioners to refrain from having consensual sexual relations with patients whom they are treating for mental health disorders, those physicians are in the best position to ensure that they bring no harm to their patients by refraining from such conduct, and, thus, physicians possess the ability to limit their liability by acting within already imposed state regulatory limitations with respect to their patients.
Similar to its discussion of the social utility factor, the majority offers that the duty to refrain from sexual contact with a patient would impose “significant consequences” and would “have the effect of discouraging general practitioners from rendering what appears to have become, by now, relatively routine attention to their patients’ mental and emotional well-being.” Majority Opinion at 1277. Yet, the majority fails to explain why this is so. In addition to its contention that imposing upon physicians such a duty will be too burdensome, the majority offers that “free will and personal responsibility hold some sway.” Id.
As discussed above, the difficulty with the majority’s analysis is that its claimed chilling effect on a general practitioner’s patient care is unsupported and dubious. In my view, the consequences of placing a duty on a physician who is rendering treatment for a mental health disorder to refrain from having sexual contact with his patient are not onerous, and I am unpersuaded that such a prohibition will discourage physicians from rendering appropriate mental health care, especially where physicians are highly-regarded and highly-trained professionals, and, as noted above, sexual conduct is already prohibited by the standards of the medical profession. Further, here we have a physician providing care for a mental health disorder to a vulnerable patient, and, thus, virtues of free will and personal responsibility simply do not resonate with their typical force. The parties’ free will may be honored should the mutual desire for a sexual relationship prove compelling: the physician may immediately terminate the professional relationship with the patient and, at some appropriate subsequent time, engage in the sexual relationship desired; or, in the alternative, the physician may continue treating the patient but refrain from having a sexual relationship. In my view, the consequences of burdening general practitioners with a duty of care not to engage in sexual relations with patients whom they are treating for mental health problems are minimal and weigh in favor of recognizing such a duty.
I find that faithful application and weighing of the Althaus factors leads to recognizing a legal duty on a general practitioner to refrain from having sexual relations with a patient whom the physician is treating for mental health disorders, and should allow this claim to proceed beyond the pleadings stage. As we have recognized, “the concept of duty amounts to no more than the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection from the harm suffered.” Althaus, 562 Pa. at 552, 756 A.2d at 1168-69 (internal quotation marks omitted). Importantly, “the legal concept of duty of care is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice and society.” Id. at 553, 756 A.2d at 1169. In light of our Court’s understanding of the notion of duty, I have no hesitation in concluding that general practice physicians who provide treatment for mental health disorders to patients have a duty to abstain from sexual relations with their patients — conduct which is deemed to be unprofessional and prohibited by the medical community — and that these physicians may be potentially liable in professional negligence actions for any harm to their patients — patients they pledged to take no action to harm — as a result of engaging in such conduct.
Here, Mrs. Thierfelder has pled, inter alia, that she was in a physician-patient relationship; that Dr. Wolfert was treating her for a mental health disorder, depression; that, during this relationship, Dr. Wolfert’s treatment and medication caused her to believe that he was her “hero,” that
Thus, for the above reasons, I would affirm the order of the Superior Court.
. Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000).
. In the context of physicians and patients, it is universally accepted that there already exists a duty on the part of a physician to conform to certain acceptable medical standards of reasonable medical care when treating a patient. Arguably, in the absence of legislative guidance defining the scope of this duty, such matters as presented in this case can be resolved according to the standards of the profession, as determined through the adjudicative process, and usually requiring expert testimony to establish the proper standard of care. Quinby, 589 Pa. at 199, 907 A.2d at 1070. Indeed, Mr. and Mrs. Thier-felder have offered a certificate of merit in support of their claims which provides that Dr. Wolfert’s conduct departed from acceptable medical standards. In my view, however, and as discussed below, here, the standards of the profession are clearly articulated, and, thus, a determination of the existence of a duty under these circumstances may properly be undertaken by our Court.
. The majority progressively morphs the issue before us. We granted allocatur to determine "Whether, for purposes of determining professional negligence, a general practitioner who provides mental health treatment to a patient is held to the same higher duty as a specialist in psychiatry or psychology?” Thierfelder, 603 Pa. 430, 984 A.2d 935 (2009) (order). In its opinion, the majority begins that the question before us is "whether a medical general practitioner who provides incidental mental health treatment to a patient, with whom he then engages in a sexual affair, may be held to a particularized ‘specialist duty,’ applicable to mental health professionals, that prohibits consensual sexual contact with patients, such that the defendant general practitioner may be subject to medical malpractice liability in tort.” Majority Opinion at 1253 (emphasis added). Then, the majority begins its analysis by rephrasing the issue as follows: "The question here is whether to extend a mental health specialist’s presumed duty to refrain from sexual activity with patients to general practitioners who provide some degree of mental or emotional counseling to a patient, or who prescribe common medications for depression or anxiety for that
. The majority cogently offers that our Court has not addressed the seemingly predicate question of whether professional liability arises from a mental health professional’s consensual sexual conduct with a patient; however, after scholarly analysis, the majority properly offers that courts in other states have overwhelmingly concluded a claim against a mental health professional for his consensual sexual conduct with a patient gives rise to a claim in professional negligence. Majority Opinion at 1266-72.
. The majority further suggests, at some length, that courts have been reluctant to recognize a cause of action in professional liability when a general practitioner provides treatment for a physical injury, i.e., non-mental health treatment, and engages in consensual sexual conduct with a patient. I do not quibble with its characterization of the law, but simply emphasize this issue is plainly not before us. What I am concerned about is the majority's characterization of the circumstances before us as occurring "in the grey area between purely physical medical care and mental and emotional care, which may entail a broad range of treatments from simple counseling, to a single prescription by a general practitioner to treat a regular patient's occasional anxiety ..., to comprehensive and sustained treatment by mental health specialists to address serious psychological illnesses such as schizophrenia and bipolar disorder.” Majority Opinion at 1273 (emphasis added). The broad range of treatment we consider today, however, is that given by a general practitioner' — not a mental health specialist — who, as noted below, may fully engage in "comprehensive and sustained treatment" for "serious psychological illness.” Thus, the majority’s division between which type of practitioner may engage in differing levels of treatment is not only unfounded, but, properly understood, sharpens the point: today's holding fails to recognize a duty on the part of a physician, and, thus, a claim in professional negligence against not only general practitioners who give a “single prescription,” and engage in sexual relations with their patients, but also those generalists who provide "comprehensive and sustained treatment” for "serious psychological illness,” and engage in sexual relations as well.
. According to the majority, placing a duty on general practitioners would create an “absolute 'duty' in general practitioners to refrain from sexual relations with patients they have treated for mental health issues” and would create a per se cause of action. Majority Opinion at 1273 n. 21. First, the "absolute duty” to refrain from sexual relations with his or her patients is no different than the "absolute” ethical duty currently imposed upon physicians, with which they must abide. Thus, while I would recognize a duty on a physician when treating a patient for mental health disorders to refrain from sexual relations with that patient, doing so respects an unqualified prohibition already firmly in place. Second, and contrary to the majority's assertions that "showing both treatment and sexual relations proves the [cause of action],” id., to be successful for a claim in professional negligence in these circumstances, a patient would need to establish not only treatment for a mental health disorder and sexual relations between physician and patient, but also that the sexual relations both caused and resulted in harm to the patient. Finally, while criticizing my approach as absolutist, it should be contrasted against the majority’s own absolutist bar of any professional negligence liability for a general practitioner based upon sexual contact with a patient, regardless of the nature of the treatment or how severe the mental health disorder suffered by the patient.
. 42 Pa.C.S.A. § 5929; Pa.R.E. 501.
. See Lindstrom, supra, where each discrete factor, including social utility was applied separately. Additionally, in Althaus, we considered social utility of a physician’s actions as a discrete factor and then also weighed this factor against risk and foreseeability: ’’[h]ere, the social utility disfavors expanding therapist’s duty of care to non-patients, especially where the non-patients are the accused vic-timizers. However, we must also weigh this factor against the potential risk and foreseeability of harm stemming from improper treatment of children who have been sexually abused.” 562 Pa. at 554, 756 A.2d at 1170 (emphasis added).
. The majority repeatedly downplays the care provided by a general practitioner to a patient who suffers from a mental health disorder as "base-level” and "relatively routine” and suggests patients seek help from mental health professionals for only "serious mental and emotions problems.” However, as noted above, a general practitioner is licensed to provide mental health and psychiatric services in Pennsylvania, and, at this stage, we simply do not know the type or level of care that Dr. Wolfert provided while treating Mrs. Thierfelder for depression.
. I view as distinct the question of whether it would be appropriate to impose a duty where a physician has sexual relations with a patient who is being treated only for a physical condition, as such sexual contact could be viewed as unrelated to the patient’s treatment and physical condition. As noted above, that question is not before us in the present case.
