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Long Island Doctor to Pay Less for Patient Affair

(CN) - An osteopath who had an affair with one of his patients does not owe punitive damages, and the patient must carry some of the blame, the New York Court of Appeals ruled.

Dr. James Giugliano treated Kristin Kahkopnen Dupree for stress and depression in 2000. The Long Island osteopath gave Dupree a prescription for anti-depressant drugs and recommended exercise and warm baths for stress.

While Giugliano was showing Dupree exercises at a gym in June 2001, the pair began a nine-month sexual relationship. After the affair ended by mutual agreement Dupree confessed the affair to her husband, and he divorced her.

Dupree sued Giugliano for medical malpractice in 2005. Her expert testified that "eroticized transference" caused Dupree to experience a "near psychotic attraction" to Giugliano, and that she was powerless to resist this attraction.

Though jurors found Giugliano had committed malpractice against Dupree, they also said Dupree deserved 25 percent of the blame. The jury awarded Dupree damages totaling $504,000, covering past and future mental distress, past loss of income, and $166,000 in punitive damages.

After the Appellate Division affirmed, both parties took the case to the New York Court of Appeals.

In an unsigned opinion, the state's high court affirmed most aspects of the verdict.

"A jury might reasonably conclude that the sexual relationship was substantially related to, an in fact interfered with the treatment so as to constitute medical malpractice," the judges wrote.

They also ruled that there was enough blame for both parties, retaining the 75-25 split in comparative fault.

"The affair continued for nine months, during which time both plaintiff and defendant clearly sought out repeated sexual encounters," the ruling states.

Punitive damages are improper, however, since "there is no evidence the doctor willfully caused the plaintiff's 'transference' or harm," the court found.

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