Cotton v. Kambly , 101 Mich. App. 537 ( 1980 )

101 Mich. App. 537 (1980) 300 N.W.2d 627

COTTON
v.
KAMBLY

Docket No. 45269.

Michigan Court of Appeals.

Decided November 19, 1980.

Marjory B. Cohen, for plaintiff.

Dice, Sweeney, Sullivan & Feikens, P.C., for defendant Kambly.

Before: DANHOF, C.J., and M.J. KELLY and G.R. CORSIGLIA,^[*] JJ.

DANHOF, C.J.

Plaintiff, Bettina Cotton, appeals from a trial court order granting summary judgment in favor of defendants Arnold Kambly, M.D. and University Center, Inc. In her complaint, plaintiff claimed she suffered mental and emotional damages when Dr. Kambly induced her to engage in sexual intercourse with him during the course or under the guise of psychiatric treatment. She alleged willful misconduct, negligence, malpractice, fraudulent misrepresentation and deceit on the part of Dr. Kambly. Her assertion of liability on the part of University Center was based on the doctrine of respondeat superior. Henceforth, references to defendant in this opinion are to Dr. Kambly.

In granting the defense motion for summary judgment, the trial court ruled that the complaint failed to state a claim upon which relief could be granted because the allegations contained therein were covered by MCL 551.301; MSA 25.191, which abolishes all civil causes of action for alienation of affections, criminal conversation, seduction of any person 18 years of age or older and breach of contract to marry. The judge stated that this statute was intended to transfer actions of the type brought by plaintiff to the criminal side of the court. He referred to MCL 750.90; MSA 28.285, which makes it a felony for a doctor to induce a patient to engage in sexual intercourse under the guise of treatment.

Plaintiff brought the present action in her own name for her own injuries; therefore, her action was not based on alienation of affections or criminal conversation, which are common law torts involving interference with the marriage relationship, or breach of contract to marry. Defendant argues that plaintiff's action was, in essence, for seduction. Seduction has been defined as,

"the act of persuading or inducing a woman of previously chaste character to depart from the path of virtue by the use of any species of acts, persuasions, or wiles which are calculated to have, and do have, that effect, and resulting in her ultimately submitting her person to the sexual embraces of the person accused." Savage v Embrey, 216 Mich 123, 127; 184 NW 503 (1921).

At common law, loss of services was indispensable to a cause of action for seduction and as a result, a right of action for seduction was possessed only by the parents or guardian of a seduced minor. Prosser, Torts (4th ed), § 124, p 884. However, Michigan is one of the few jurisdictions which allowed a woman to sue in her own name for her own seduction. Weiher v Meyersham, 50 Mich 602; 16 NW 160 (1883), Becker v Mason, 93 Mich 336; 53 NW 361 (1892). MCL 551.301; MSA 25.191, abolishing the civil causes of action for seduction of a woman 18 years of age or older and for the other common law torts previously mentioned, became effective in 1935. Essentially the same language is contained in MCL 600.2901; MSA 27A.2901, which is part of the Revised Judicature Act of 1961. MCL 600.2910; MSA 27A.2910, part of the same act, expressly limits actions for seduction to females under the age of 18 and confers standing on the victim's parents or guardian to bring the action.

Defendant relies on Nicholson v Han, 12 Mich App 35; 162 NW2d 313 (1968), which was cited as controlling by the trial court. In Nicholson, the plaintiff and his wife consulted the defendant doctor for psychiatric and marriage counselling services. According to plaintiff, instead of rendering the agreed-upon services, the doctor persuaded plaintiff's wife to engage in sexual relations with him and to obtain a divorce. Plaintiff sued, alleging breach of contract, malpractice, assault and battery, negligence and fraud on the part of the doctor. The lower court dismissed the action and this Court affirmed, holding that plaintiff's breach of contract and fraud allegations were actually claims for alienation of affections and criminal conversation abolished by statute.

We do not find Nicholson dispositive in the instant case. This Court never addressed the question of malpractice in Nicholson, since the appeal was from the trial court dismissal of the breach of contract and fraud counts only. Even if we employ the type of analysis utilized in that case, whereby we look beyond the labels used by plaintiff in defining her cause of action to determine whether her claim is for seduction, we find summary judgment was improperly granted in the present case. Part of plaintiff's claim is for medical malpractice, which has been defined as the failure of a member of the medical profession, employed to treat a case professionally, to fulfill the duty to exercise that degree of skill, care and diligence exercised by members of the same profession, practicing in the same or similar locality, in light of the present state of medical science. Kambas v St Joseph's Mercy Hospital, 389 Mich 249; 205 NW2d 431 (1973). Plaintiff alleges that defendant induced her to engage in sexual relations with him as part of her prescribed therapy. We see no reason for distinguishing between this type of malpractice and others, such as improper administration of a drug or a defective operation. In each situation, the essence of the claim is the doctor's departure from proper standards of medical practice. Therefore, while the facts alleged by plaintiff might also state a cause of action for common law seduction, we do not find that seduction was the gist of her malpractice claim. We agree with the type of reasoning employed in Roy v Hartogs, 85 Misc 2d 891; 381 NYS2d 587 (1976), where a patient sued her psychiatrist claiming that he had engaged in sexual intercourse with her as part of her prescribed therapy. The Court stated:

"The right of action to recover a sum of money for seduction has been abolished by article 8 of the Civil Rights Law and the predecessor legislation found in article 2-A of the Civil Practice Act. These statutes were passed, as a matter of public policy, so that marriages should not be entered into because of the threat or danger of an action to recover money damages and the embarrassment and humiliation growing out of such action (Fearon v Treanor, 272 NY 268, 274). However, this legislation did not abolish all causes of action wherein the act of sexual intercourse was either an ``incident of' or ``contributed to' the ultimate harm or wrong (Tuck v Tuck, 14 NY2d 341). In this proceeding, the injury to the plaintiff was not merely caused by the consummation of acts of sexual intercourse with the defendant. Harm was also caused by the defendant's failure to treat the plaintiff with professionally acceptable procedures (cf., Zipkin v Freeman, 436 SW2d 753, 761, 762 [Mo, 1969]; cf., Anclote Manor Foundation v Wilkinson, 263 So 2d 256, 257 [Fla, 1972]). By alleging that his client's mental and emotional status was adversely affected by this deceptive and damaging treatment, plaintiff's counsel asserted a viable cause of action for malpractice in his opening statement (Tuck v Tuck, supra, p 345)." 85 Misc 2d 891, 892-893.

We hold that the statutes abolishing the civil cause of action for seduction do not bar plaintiff's malpractice claim. The fact that defendant may also be subject to criminal and professional sanctions for his conduct is no reason for denying plaintiff her right to bring a civil action for malpractice. See, Albert v Chambers, 335 Mich 111; 55 NW2d 752 (1952).

Reversed. Costs to plaintiff.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.