Pa. Supreme Court rules general practitioners not held to sex prohibitions

Prohibitions stands for mental health care providers

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In a case of first impression, the state Supreme Court has ruled that general practitioner doctors are not barred from having consensual sex with a patient, even if they are also providing "incidental mental health treatment" to the patient.

In so doing, the court has refused to extend the prohibition that prevents mental health physicians from having consensual sex with their patients -- and makes those who do susceptible to medical malpractice suit -- to general practitioners and family doctors.

In Thierfelder v. Wolfert, the high court ruled 5-1 -- suspended Justice Joan Orie Melvin did not participate in the decision -- to reverse a divided May 2009 Superior Court ruling that both general practitioners and psychiatrists "need to maintain the same trust when rendering psychological care."

Chief Justice Ronald D. Castille, writing for the majority, said that even what might constitute an ethical violation does not necessarily amount to a legal violation.

"The question is not whether this court condones appellant's actions, nor even whether his actions amounted to a violation of medical ethics," Justice Castille said. "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."

Justice Castille was joined by Justices Max Baer, Thomas G. Saylor, J. Michael Eakin and Seamus P. McCaffery.

According to court papers, Joanne Thierfelder and her husband, David Thierfelder, sued Philadelphia-area doctor Irwin Wolfert, the couple's family physician, in 2003, alleging Dr. Wolfert began an affair with Joanne Thierfelder while treating her for anxiety, depression and marital problems. According to the complaint, the doctor's actions -- he was also prescribing the patient anti-depression medications -- worsened Joanne Thierfelder's psychological condition.

Based on those allegations, the couple brought negligence, medical malpractice, loss of consortium and other claims against the doctor, according to court documents.

Justice Debra Todd dissented, saying the majority's view 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."

"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," Justice Todd wrote.

But Justice Castille replied in the majority opinion that the court's holding in Thierfelder "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," he wrote.

In May 2009, according to court papers, a 6-3 majority of the Superior Court overturned a trial court judge who had dismissed the case on preliminary objections, basing the decision on the Superior Court's 2004 decision in Long v. Ostroff.

In Long, a panel of the court led by then-Judge Richard B. Klein held that "a general practitioner's duty of care does not prohibit an extramarital affair with a patient's spouse."

Though the panel's ruling in Long prevents a spouse from bringing a medical malpractice claim against a doctor having an affair with the spouse's partner, it did not do the same for Joanne Thierfelder's claims, Judge Klein said.

The "critical distinction" between the cases was that there is a much greater risk of foreseeable harm when the plaintiff -- rather than the plaintiff's spouse -- is the person with whom the doctor is having the affair, he said.

Justice Castille noted that courts have previously recognized that mental health professionals should not be allowed to "prey upon their patients' hopes, fears, feelings and personal issues, which are the very basis of the therapist-patient relationship."

"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," Justice Castille said.

"As both parties recognize, it has become 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."

Dr. Wolfert's attorney, Kimberly A. Boyer-Cohen of Marshall, Dennehey, Warner, Coleman & Goggin in Philadelphia, said she was not authorized to comment on the case.

Counsel for the Thierfelders, Bruce G. Cassidy of Bruce G. Cassidy & Associates in Princeton, N.J., also could not be reached.

As a result of the Supreme Court opinion, the Superior Court ruling was vacated and remanded "for further disposition, [including] consideration of whether any preserved issues remain that were not addressed as a result of the Superior Court's disposition."


Zack Needles: or 215-557-2493. To read more articles like this, visit


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