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Court says affair is medical malpractice

ALBANY — It was medical malpractice for a Long Island family doctor to have an affair with a married patient he treated for anxiety and depression, but she shares the fault since they both sought repeated sexual encounters, New York’s highest court ruled Thursday.

The Court of Appeals upheld a jury award of $338,000 in damages to Kristin Kahkonen Dupree. The jury set her fault at 25 percent, which will reduce damages by that much. The top also stripped another $166,000 in punitive damages, finding no malicious conduct by Dr. James E. Giugliano beyond breach of professional duty, making the award just over $250,000.

The nine-month affair ended in 2002. Dupree told her husband, who sued for divorce.

She sued Giugliano for malpractice in 2005, her lawyer arguing that her romantic feelings resulted from “eroticized transference,” from the patient shifting emotions toward her therapist. Giugliano’s lawyer countered that the affair was consensual and unrelated to treatment, which initially started with the osteopath treating her for a gastrointestinal condition.

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