PATRICIA C. v. Mark D.

In this case we hold that in a medical malpractice action claiming injury and damages from psychologist-patient sexual contact, the trial court has discretion to admit evidence of plaintiffs sexual history for the purpose of determining proximate cause, but only to the limited extent the history is relevant and its probative value outweighs its prejudicial effect.

I. Background

Patricia C. appeals from a defense judgment in her action against psychologist Mark D. for medical malpractice and infliction of emotional distress through sexual contact with her.

Mark began treating Patricia at a community counselling agency in June 1985. She was 23 years old, unemployed and homeless. She told Mark her father had abused her, she had been a prostitute at the age of 13, and she had previously worked as a topless dancer. Mark felt she was possibly psychotic.

According to Mark, during the course of treatment Patricia sometimes did things that had sexual aspects, such as dressing seductively and acting flirtatiously. At one point she became very angry at him when he told her she was spending too much time at the agency and should be there only when she had an appointment. On…