Legal malpractice is but a child of professional negligence, and medical malpractice is a sibling.  In “Jane Doe” v Sharma  2018 NY Slip Op 28386  Decided on December 1, 2018 Supreme Court, Nassau County  Judge Brown navigates a very unusual medical malpractice case which has several shocking details.

“In this highly unusual case, the plaintiff has advanced five causes of action: negligent retention and supervision of the defendant Mohan Sharma; assault, battery and endangerment; intentional; negligent infliction of emotional distress; professional negligence and malpractice. This action was tried before a jury for seven days. The jury found the defendant and his practice, defendant Caring Medical, LLC, liable. The jury found (1) that the defendant Mohan Sharma departed from “the accepted standards of medical practice by practicing medicine while impaired by a cognitive disability;” (2) that his departure was a substantial factor in bringing about the plaintiff’s injuries; (3) that Caring Medical, LLC was negligent in permitting the defendant to practice medicine while impaired by a cognitive disability; and (4) that Caring Medical’s negligence was also a substantial factor in bringing about the plaintiff’s injuries. Mohan Sharma was found 70% at fault and Caring Medical was found 30% at fault. The plaintiff was awarded $700,000 for past pain and suffering and $300,000 for future pain and suffering for the upcoming ten years. Mohan Sharma and Caring Medical, LLC presently ask this court to set aside the jury’s findings as against the weight of the evidence.”

“The plaintiff’s claims arose from an incident occurring while the plaintiff was in defendant Mohan Sharma’s medical office along with her grandmother to receive certain test results. It is undisputed that during this visit the defendant Mohan Sharma took his penis out of his pants, masturbated and ejaculated on the plaintiff Jane Doe. The plaintiff, who suffers from intellectual disabilities, testified in sum that she and her grandmother had gone to the defendant’s office for a scheduled appointment on the day in question to obtain the results of urinary and blood tests and to have a bug bite on her grandmother’s arm examined. They were both brought into the examining room, which was a usual practice for them when they saw the defendant. The defendant had the plaintiff’s grandmother sit on the examination table facing the wall while he [*2]examined her back with a stethoscope. The plaintiff testified that he then approached her and stuck out his tongue and then “started unzipping his pants and took his penis out.” She testified that “he was trying to make [her] force of touching him and doing disgusting things to [her] and he eventually ‘semened’ on [her] pants and on the floor.” She further testified that she was able to take a video of his actions by pressing “record” on her phone. That video was shown to the jury. It shows the defendant exposing his penis, masturbating in front of the plaintiff, gesturing to her to touch his penis and to put her mouth on it.”

“The parties did not dispute that due to an aggressive form of frontal temporal dementia, the defendant Mohan Sharma was incapable of forming intent at the time of the sexual abuse. A stipulation was read to the jury consisting of the following: the defendant “was arrested for the acts committed against [the plaintiff] on October 11, 2013 and criminally charged with endangering the welfare of an incompetent or physically disabled person in the first degree in violation of Penal Law § 260.25, a Class E felony, and sexual abuse in the second degree, in violation of Penal Law§ 130.60, a class A misdemeanor. . . .” The stipulation advised the jury that those charges were dismissed because the defendant himself was determined to be an “incapacitated person.” The stipulation also included a statement that “[t]he acts committed against the [plaintiff] by [the defendant] were not intentional but rather were involuntary acts caused by complex partial seizures accompanied by masturbatory automatic behaviors resulting from his cognitive disorders.”

The jury also heard testimony that the defendant had exposed himself to an employee in January 2013, eight months before the subject incident, and the stipulation contained the January victim’s sworn statement that “Dr. Sharma pulled his penis out of his pants and grabbed my hand and tried to make me touch it” and noted that those contentions were never adjudicated because of the defendant’s incapacity. The jury was further advised via the stipulation that on February 26, 2013 Mohan Sharma stated that he engaged in other instances of conduct similar to his misconduct in January 2013.”

“The defendant’s expert acknowledged that he was impaired by a cognitive disorder that was progressive and degenerative at the time of the plaintiff’s assault and that this disability was severe. In fact, he testified that the defendant was in the throes of a major cognitive event when the abuse occurred.”

“These cases, though not directly analogous, highlight the standard to guard patients from foreseeable risks. So, too, the unique facts presented require independent consideration rather [*6]than rote application of general rules. Upon the evidence presented, a reasonable jury could determine that the plaintiff was present in the examination room at the time of the abuse as a patient of Dr. Mohan Sharma and that the events that unfolded were substantially related to her treatment. Further a reasonable jury could have determined that Dr. Sharma’s knowledge of his cognitive decline and his own past acts, together with his failure to protect his intellectually disabled patient from an unreasonable risk of harm was a breach of his professional duty, amounting to professional malpractice. Accordingly, the branch of defendants’ motion to set aside the verdict is denied.”