This is one case you’d prefer not to have to defend in court.

In Thierfelder v. Wolfert, Pennsylvania Supreme Court answered the question of whether medical malpractice occurs when a doctor has an extramarital sexual affair with a patient he is treating for anxiety and depression. A little background.

David and Joanne Thierfelder, husband and wife, were both treated by Dr. Wolfert. Dr. Wolfert prescribed Joanne different medications for her depression and anxiety. While still being treated by Dr. Wolfert, Joanne confessed strong feelings for her doctor. This happens. Dr. Wolfert and Joanne soon began a consensual sexual relationship. No one told David, Joanne’s husband. At least not for a while.

About a year into the relationship, Joanne ended the tryst. Weeks later she confessed to her husband.

Later that year (2003), both David and Joanne filed a number of lawsuits against Dr. Wolfert. The list included medical malpractice, loss of consortium, intentional infliction of emotional distress, and battery. Ouch.

Dr. Wolfert defended against medical malpractice arguing that Pennsylvania courts had already addressed the topic. And he should be cleared. In Long v. Ostroff, the Supreme Court ruled that a doctor owes no duty to avoid sleeping with his patient’s wife, if the wife is not also his patient. In that case, Dr. Ostroff was charged with medical negligence for having an affair with his patient’s wife. The husband came to the doctor complaining of depression. The doctor prescribed medication to make him feel better. On a parallel front, the doctor was having a consensual affair with the patient’s wife. Note, and this is an important distinction made by the Court, the wife was NOT being treated by the doctor. Ergo, the doctor owed no duty to avoid an affair.

But, not so fast. Back to Dr. Wolfert. The Supreme Court said his case was different. Wolfert was potentially liable since he was simultaneously treating the patient with whom he was having an affair. The court said the risk of forseeable harm with an affair is greater if a doctor is treating the adultress.

Duty can be a complicated legal question.

In Pennsylvania the general rule seems to be:

If you are a primary care doctor treating a patient, do not sleep with him/her while you are still treating him/her as a patient.

If you are a primary care doctor treating a patient, you sidestep allegations of medical malpractice if you sleep with his/her spouse — if the spouse is not your patient.

We could recommend some simpler rules to avoid a six year legal battle.