Sognier, Judge.
St. Paul Fire and Marine Insurance Company (St. Paul), Dr. Ronald Kleber’s malpractice insurance carrier, filed the instant declaratory judgment action after Mary Sue Mitchell and her husband filed suits against Dr. Kleber, for medical malpractice. After [216] answers were filed, St. Paul moved for partial summary judgment on the ground that the Mitchells’ suit was a tort action not covered under Dr. Kleber’s malpractice policy.* The Mitchells and Dr. Kleber moved for summary judgment on all issues. The trial court granted partial summary judgment to the Mitchells and Dr. Kleber requiring St. Paul to defend the malpractice suit against Dr. Kleber. The court denied all motions on the coverage question. St. Paul appeals and the Mitchells cross appeal.
1. Appellant St. Paul contends that the trial court erred in granting summary judgment to appellees because the insurance company had no duty to defend Dr. Kleber under the insurance policy. The trial court’s ruling was based on a clause in the insurance policy which provided, in pertinent part: “COVERAGE A-PROFESSIONAL LIABILITY ... the Company shall have the right and duty to defend in his name and behalf any suit against the Insured alleging damages, even if such suit is groundless, false or fraudulent . . .”
The trial court followed the rule enunciated in Loftin v. U. S. Fire Ins. Co., 106 Ga. App. 287 (127 SE2d 53) (1962), quoted and cited with approval in Great American Ins. Co. v. McKemie, 244 Ga. 84,85 (259 SE2d 39) (1979), as follows: “ ‘The true rule is that the duty to defend is determined by the contract; and since the contract obligates the insurer to defend claims asserting liability under the policy; even if groundless, the allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted. ’ ” Thus, the issue in the instant case is not whether Dr. Kleber is actually liable to the Mitchells or whether he actually committed the acts alleged to be malpractice; the issue is whether a claim has been asserted which falls within the policy coverage and which St. Paul has a duty to defend.
The Mitchells’ complaints alleged, inter alia: “. . . Defendant so aroused Mrs. Mitchell’s emotions by manipulation of the transference phenomemon that she fell in love with him. Defendant brought about this result by wrongfully manipulating the doctor-patient relationship to the point where Plaintiff’s feelings were no longer transferred feelings of love for Defendant as a psychiatrist but direct feelings of love for him as a person, beyond the phenomenon of transference . . . Defendant was negligent in his treatment and counseling of Plaintiff in that he failed to exercise the degree of care and skill, or to possess the degree of knowledge [217] ordinarily exercised and possessed by other psychiatrists with regard to the existing state of knowledge in psychiatry. Defendant was. negligent in that he mishandled the transference phenomenon.” The complaints further alleged that this mishandling of the transference phenomenon resulted in the doctor having sexual relations with his patient, Mrs. Mitchell.
We recognize that if a claim is asserted which does not fall within the contract coverage then the insurer is relieved of his contractual duty to defend. Great American Ins. Co., supra. However, in our opinion, the allegations set forth above assert a claim which falls within the policy coverage.
The policy in question provides that the insurer will “pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages arising out of the performance of professional services rendered or which should have been rendered, during the policy period, by the Insured or by any person for whose acts or omissions the Insured is legally responsible . . .” St. Paul argues that Dr. Kleber’s alleged acts are outside the category of professional services for purposes of coverage.
Courts in other states have held that conduct such as that alleged to have been committed by Dr. Kleber may be considered malpractice by a psychiatrist. In Cotton v. Kambly, 101 Mich. App. 537, 541 (300 NW2d 627) (1980), the court stated: “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.” See also Anclote Manor Foundation v. Wilkinson, (Fla.) 263 S2d 256 (1972), and Zipkin v. Freeman, (Mo.,) 436 SW 2d 753, 761 (1968). In Zipkin the court said: “However, it is an oversimplification to focus on the more spectacular and extreme acts of the doctor as determinative of the issue. Under the extremely broad terms of the policy before us, defendant agreed to pay damages ‘based on’ — which would also mean resulting from, or caused by, or due to — professional services rendered or which should have been rendered. The word ‘damages’ is not limited to any particular kind of damage or injury and applies to any claim or suit, with certain specific exceptions not here material. Defendant would limit the damages to the very act itself of professional services, but the policy clearly covers the results and liability flowing from professional services rendered [218] or which should have been rendered.
“The gravamen of the petition is that defendant did not treat Mrs. Zipkin properly and as a result she was injured. He [allegedly] mishandled the transference phenomenon, which is a reaction the psychiatrists anticipate and which must be handled properly. He [allegedly] mishandled it over a long period of time. As [experts] explained, to take the relationship outside the office into social relationships, ‘would allow the patient to develop all sorts of unusual ideas just around the feelings that she has about the doctor’...” Thus, we find ample authority for holding that acts such as those alleged in the Mitchells’ complaints come within St. Paul’s contractual obligation to defend for matters arising out of Dr. Kleber’s performance of his professional duties.
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Sognier, Judge.
St. Paul Fire and Marine Insurance Company (St. Paul), Dr. Ronald Kleber’s malpractice insurance carrier, filed the instant declaratory judgment action after Mary Sue Mitchell and her husband filed suits against Dr. Kleber, for medical malpractice. After [216] answers were filed, St. Paul moved for partial summary judgment on the ground that the Mitchells’ suit was a tort action not covered under Dr. Kleber’s malpractice policy.* The Mitchells and Dr. Kleber moved for summary judgment on all issues. The trial court granted partial summary judgment to the Mitchells and Dr. Kleber requiring St. Paul to defend the malpractice suit against Dr. Kleber. The court denied all motions on the coverage question. St. Paul appeals and the Mitchells cross appeal.
1. Appellant St. Paul contends that the trial court erred in granting summary judgment to appellees because the insurance company had no duty to defend Dr. Kleber under the insurance policy. The trial court’s ruling was based on a clause in the insurance policy which provided, in pertinent part: “COVERAGE A-PROFESSIONAL LIABILITY ... the Company shall have the right and duty to defend in his name and behalf any suit against the Insured alleging damages, even if such suit is groundless, false or fraudulent . . .”
The trial court followed the rule enunciated in Loftin v. U. S. Fire Ins. Co., 106 Ga. App. 287 (127 SE2d 53) (1962), quoted and cited with approval in Great American Ins. Co. v. McKemie, 244 Ga. 84,85 (259 SE2d 39) (1979), as follows: “ ‘The true rule is that the duty to defend is determined by the contract; and since the contract obligates the insurer to defend claims asserting liability under the policy; even if groundless, the allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted. ’ ” Thus, the issue in the instant case is not whether Dr. Kleber is actually liable to the Mitchells or whether he actually committed the acts alleged to be malpractice; the issue is whether a claim has been asserted which falls within the policy coverage and which St. Paul has a duty to defend.
The Mitchells’ complaints alleged, inter alia: “. . . Defendant so aroused Mrs. Mitchell’s emotions by manipulation of the transference phenomemon that she fell in love with him. Defendant brought about this result by wrongfully manipulating the doctor-patient relationship to the point where Plaintiff’s feelings were no longer transferred feelings of love for Defendant as a psychiatrist but direct feelings of love for him as a person, beyond the phenomenon of transference . . . Defendant was negligent in his treatment and counseling of Plaintiff in that he failed to exercise the degree of care and skill, or to possess the degree of knowledge [217] ordinarily exercised and possessed by other psychiatrists with regard to the existing state of knowledge in psychiatry. Defendant was. negligent in that he mishandled the transference phenomenon.” The complaints further alleged that this mishandling of the transference phenomenon resulted in the doctor having sexual relations with his patient, Mrs. Mitchell.
We recognize that if a claim is asserted which does not fall within the contract coverage then the insurer is relieved of his contractual duty to defend. Great American Ins. Co., supra. However, in our opinion, the allegations set forth above assert a claim which falls within the policy coverage.
The policy in question provides that the insurer will “pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages arising out of the performance of professional services rendered or which should have been rendered, during the policy period, by the Insured or by any person for whose acts or omissions the Insured is legally responsible . . .” St. Paul argues that Dr. Kleber’s alleged acts are outside the category of professional services for purposes of coverage.
Courts in other states have held that conduct such as that alleged to have been committed by Dr. Kleber may be considered malpractice by a psychiatrist. In Cotton v. Kambly, 101 Mich. App. 537, 541 (300 NW2d 627) (1980), the court stated: “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.” See also Anclote Manor Foundation v. Wilkinson, (Fla.) 263 S2d 256 (1972), and Zipkin v. Freeman, (Mo.,) 436 SW 2d 753, 761 (1968). In Zipkin the court said: “However, it is an oversimplification to focus on the more spectacular and extreme acts of the doctor as determinative of the issue. Under the extremely broad terms of the policy before us, defendant agreed to pay damages ‘based on’ — which would also mean resulting from, or caused by, or due to — professional services rendered or which should have been rendered. The word ‘damages’ is not limited to any particular kind of damage or injury and applies to any claim or suit, with certain specific exceptions not here material. Defendant would limit the damages to the very act itself of professional services, but the policy clearly covers the results and liability flowing from professional services rendered [218] or which should have been rendered.
“The gravamen of the petition is that defendant did not treat Mrs. Zipkin properly and as a result she was injured. He [allegedly] mishandled the transference phenomenon, which is a reaction the psychiatrists anticipate and which must be handled properly. He [allegedly] mishandled it over a long period of time. As [experts] explained, to take the relationship outside the office into social relationships, ‘would allow the patient to develop all sorts of unusual ideas just around the feelings that she has about the doctor’...” Thus, we find ample authority for holding that acts such as those alleged in the Mitchells’ complaints come within St. Paul’s contractual obligation to defend for matters arising out of Dr. Kleber’s performance of his professional duties.
St. Paul cites to the contrary Hartogs v. Employers Mut. Ins. Co. of Wis., 391 N.Y. S2d 962 (1977). That case is distinguishable from the facts in the instant case and will not be followed. In Hartogs, after the patient had secured a judgment against the doctor, the doctor brought suit against his insurer seeking recovery of the cost of defending the suit, the insurer having denied liability and having refused to defend. Since a judgment had been rendered against the doctor, he had been adjudicated a wrongdoer. In Hartogs the court stated: “the doctor administering the ‘treatment’ at all times knew, and has so stated in the previous trial and on this motion, that what he was doing was in no way pursuant to the doctor-patient relationship. The obvious purpose was to permit him to accomplish his personal satisfaction.” Id. at 964. “Therefore as between the plaintiff and his insurer those actions could not constitute malpractice and were never intended to be included within the protective coverage of the malpractice policy.” (Emphasis supplied.) Id. at 965.
However, the New York Court also said: “The distinction to be drawn between the injured party and the insured is clear. No longer is it the law in this state ‘that the liability policy existed solely for the protection of the insured’ [Cit.] The courts recognize that the injured person also is to be protected.” Id. at 964. Thus, the court, as between the insurer and the insured doctor, ruled against the doctor so that he would not be indemnified for his immorality. But the court made a distinction between the doctor’s rights as a wrongdoer and the rights of the victim or the injured person to be protected. Of note in the Hartogs case is this statement: “While the appeal was pending, the defendant insurer, despite its disclaimer to Hartogs, settled with the patient and satisfied a reduced judgment.” Id. at 963.
In deciding the issue of whether St. Paul should defend, we are not required to find that the doctor’s alleged activities were immoral, [219] illegal or against public policy. At this stage of the litigation, Dr. Kleber has not been adjudicated a wrongdoer and has denied all wrongdoing. We are deciding only that the allegations are sufficient to bring the suit within the ambit of the contract to require the insurer to defend. Loften v. U. S. Fire Ins. Co., supra, Great American Ins. Co., supra.
Decided October 13, 1982
Rehearing denied November 1, 1982
George W. Hart, Philip C. Henry, for appellant.
Lawrence B. Custer, Jerry J. Hynes, Hirsch Friedman, for appellees.
2. The trial court correctly denied summary judgment to all parties on coverage, reserving this issue for trial, as the issue depends on the resolution of questions of fact. Whether the acts alleged, i.e., the mishandling of the transference phenomenon, amount to medical malpractice or intentional sexual assault requires the testimony of experts, as is required on any other medical subject. Such medical testimony was presented in Zipkin v. Freeman, and in Anclote Manor Foundation, supra. See Seymour v. Lofgreen, Kan., 495 P2d 969, 972 (1972) for a full discussion of the doctrine of transference in psychiatry where the court, quoting from Zipkin, supra, stated: “ ‘ “What is perhaps regarded as the most significant concept in psychoanalytical therapy, and one of the most important discoveries of Freud, is the emotional reaction of the patient toward the analyst known as the transference . . ”, [Cit¡]’ ”
Based on the above, it is clear at this stage of the proceeding that neither the trial court nor this court can determine, as a matter of law, that the acts of the doctor and the alleged mishandling of the transference phenomenon constitute medical malpractice. That issue raises questions of fact requiring the aid of an expert to analyze the occurrences in this case vis a vis the duty owed by a psychiatrist to his patient.
Judgment affirmed.
Quillian, C. J., McMurray, P. J, Shulman, P. J., Banke, Birdsong, Carley and Pope, JJ., concur. Deen, P. J., dissents in part.