The opinion
MOSK, J.
I dissent.
The majority are correct when they declare that “when a plaintiff knowingly chooses to proceed on both non-MICRA and MICRA causes of action, and obtains a recovery that may be based on a non-MICRA theory, the limitation of section 6146 should not apply.” (Ante, p. 437.) At that point, the majority are on the right track. With that rule, the matter should have ended.
Unfortunately, however, they become derailed in much of the balance of their opinion, and their view of what constitutes medical treatment is incredible. They speak of “a rather unusual ‘medical malpractice’ setting” (ante, p. 431) and then conclude “it is clear that the psychiatrist’s conduct arose out of the course of psychiatric treatment he was licensed to provide.” (Ante, p. 436.)
To the contrary, sexual misconduct by a medical doctor has long been considered entirely outside the scope of treatment; indeed, medical licenses have been revoked therefor. (See, e.g., Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 949 [ 123 Cal.Rptr. 563 ].)
Under the majority’s gross extension of what may be deemed in “the course of psychiatric treatment,” I can conceive of them finding that *440 MICRA applies when (1) a medical doctor publishes a libelous statement in the local press about his patient; (2) a doctor goes berserk in his office and commits mayhem on his patient; or (3) a psychiatrist steals jewelry out of his patient’s handbag during her session on the couch. Sexual misconduct is just as egregious as, and no less independent of medical treatment than, libel, mayhem and theft.
Most significantly, the majority ignore the finding of the trial court, after hearing in open court, that the damage asserted by plaintiff was primarily the result of deliberate, intentional conduct by the psychiatrist and not mere professional negligence. We are bound by that factual determination. That the finding was based on affidavits and the pleadings rather than testimony does not negate our duty to accept it.
At the hearing on the motion for summary judgment, counsel for plaintiff relied almost exclusively on the terms of the insurance contract and the fact that settlement had been made on the basis of insurance coverage. But the trial court observed that the unusually broad provisions of the insurance policy covered the psychiatrist not only for professional negligence, but also for assault, libel and slander, malicious prosecution and “undue familiarity,” all of which are intentional torts and in most instances criminal acts.
The court also considered exhibit A to the pleadings, a police report concerning a three-day camping trip arranged by the psychiatrist entirely for plaintiff’s sexual encounter with him and another man: a ménage á trois. It can hardly be contended that such salacious conduct constituted mere professional negligence.
After considering the affidavits, the insurance policy, and argument of counsel, the experienced trial judge stated: “I’m going to find that most of the damage was outside the scope of professional negligence under which the attorney’s fees is [sic] limited. So no limit on the fees in the case Mr. Bourhis handled and I’m going to grant summary judgment for the defendant.”
Under these circumstances I see no reason to remand the matter to the trial court for further proceedings. Let this case now rest in peace.
Bird, C. J., concurred.