Richard H. v. LARRY D.

Plaintiff/appellant Richard H. appeals a judgment sustaining a demurrer without leave to amend in favor of defendants/respondents Larry D., M.D. (Dr. D.), and St. Helena Hospital and Health Center (St. Helena) on appellant’s complaint for fraud, professional negligence, and negligent infliction of emotional distress.

The gist of appellant’s complaint is that Dr. D., a licensed psychiatrist in the employ of St. Helena had surreptitious sexual relations with appellant’s wife while the couple were his patients for purposes, inter alia, of receiving marital counseling. Appellant alleges that his discovery of this fact caused him severe emotional distress.

Appellant also alleges that Dr. D. represented to him and his wife that he was a qualified psychiatrist “who would act for the best interests of his patients in the scope of marital counseling and other psychiatric treatment,” and that “at the time he made such representations, [Dr. D.] had the intent of using his position to promote sexual relations with [appellant’s wife].”

The primary issue is whether, as the trial court ruled, appellant’s claims are barred by Civil Code section 43.5, which states, in relevant part:…