Jones v. City of Chicago, 82 C 2943

Citation608 F. Supp. 994
Decision Date23 April 1985
Docket Number82 C 6390.,No. 82 C 2943,82 C 2943
CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
PartiesAnita JONES, Plaintiff, v. CITY OF CHICAGO, Defendant. Gloria PADILLA, Plaintiff, v. CITY OF CHICAGO, Defendant.

Stephen Seliger, Joseph M. Burns, Jacobs Burns Sugarman & Orlove, Chicago, for plaintiff.

James D. Montgomery, Corp. Counsel, Jonathan P. Siner, Sr. Atty.-Supervisor, Sharon A. Zogas, Asst. Corp. Counsel, Chicago, for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Anita Jones ("Jones") and Gloria Padilla ("Padilla") have separately sued the City of Chicago ("City") for damages arising from alleged sexual assaults by Dr. Luis D'Avis during the course of his gynecological examinations of the two women at a City Department of Health ("Department") facility.1 City now moves under Fed.R.Civ.P. ("Rule") 56 for summary judgment in each case. For the reasons stated in this memorandum opinion and order, both City's motions are granted.

Basic Facts Underlying Plaintiffs' Claims2

On June 11, 1981 Jones went to a Department facility for a gynecological examination. During the course of that examination Dr. D'Avis, a City employee at the facility, sexually assaulted her. Jones reported the incident later that same day and City began an investigation. Dr. D'Avis was permitted to continue his practice during the investigation. On November 13, 1981 City's investigative agency (which is wholly independent of Department) found Jones's charges "not sustained." On March 1, 1982 Dr. D'Avis sexually assaulted Padilla during a gynecological examination.

Contentions of the Parties

Plaintiffs argue City's liability for Dr. D'Avis' actions arises from City's failure to:

1. institute a formal policy either (a) requiring the presence of a female nurse or attendant at gynecological examinations by male physicians or (b) at least informing patients of their right to request such a chaperon;
2. "monitor" physician practices to determine why certain physicians did not permit nurses to chaperon gynecological examinations; and
3. conduct a proper investigation of complaints against Dr. D'Avis and take disciplinary action against him.3

City responds:

1. Its policies with respect to chaperonage were consistent with prevailing and accepted medical practice.
2. Its investigation of the Jones incident was thorough.
3. Jones's complaint was the first ever received by City against any physician alleging sexual misconduct.
Parties' Submissions on the Current Motions
1. Standard Medical Practice Concerning Chaperons

City has tendered three affidavits to prove no medical community standard requires the presence of a female chaperon during gynecological examinations by male physicians:4

(a) Dr. Ervin E. Nichols, Director of Practice Activities and member of the Committee on Gynecologic Practice (the "Committee") at the American College of Obstetrics and Gynecology (the "College") in Washington, D.C., states no such medical community standard has existed within the past 20 years (Aff. ¶ 5). Although the College has never had a formal policy regarding chaperons, the Committee has addressed the question directly. Its conclusion, consistent with Dr. Nichols' own opinion, was that the presence or absence of a chaperon should be "at the individual option of the physician and after questioning the patient as to her desires" (Aff. ¶ 3). In fact Dr. Nichols' 1981 opinion (given in response to a specific inquiry from the editors of the AMA Journal) was that the question whether a chaperon should be present at all such examinations would have been answered "yes, with possible exceptions" 30 years earlier, but that the answer in 1981 was simply "no" (Aff. ¶ 4). As he then said (id.):
In general, at the first visit, particularly with a teenager, an attendant may be desirable. This holds true even if the physician is a woman. The teenager may wish to have a hand to hold.5
(b) Dr. Robert Bouer, Chairman of the Department of Obstetrics and Gynecology of St. Joseph's Hospital in Chicago, says there is currently no medical community standard in the Chicago area requiring chaperons (Aff. ¶ 3). No such standard has existed for at least 20 years (Aff. ¶ 4).
(c) Dr. Donald R. Dye, Department's Director of Maternal and Infant Care from 1973 until 1982, says for at least the past 25 years there has been no medical community standard in the Chicago area requiring chaperons except (1) for a teenager's first examination and (2) when a patient specifically requests a chaperon.

Plaintiffs have sought to rebut that affidavit testimony by reference to several items:6

1. Dr. Dye, in his capacity as Director of Women's Health,7 wrote a memorandum (Pl.Ex.C) to Medical Deputy Commissioner Dr. David McNutt one month after the Jones incident. Dr. Dye there urged adoption of a policy requiring chaperons at pelvic examinations in City's facilities. Nowhere in the memorandum does Dr. Dye even suggest chaperons are required by medical community standards. In part the memorandum summarizes the practices at five Chicago area facilities and the recommendations of the Standards of Obstetric and Gynecological Care (1974). Again, despite plaintiffs' puzzling assertion to the contrary (Mem. 8), those summaries reflect that neither any of the identified institutions nor the treatise requires the presence of a chaperon as a matter of course.8
2. Plaintiffs' Mem. 9-10 quotes (without providing a copy or page reference) T.H. Green, Gynecology — Essentials of Clinical Practice (1977):
A nurse or other female attendant should always be present for the physical examination if the gynecologist is male.
3. Plaintiffs' Mem. 10 cites (a) an article by a fourth year medical student (S. Clyman, Why Do We Chaperone the Female Pelvic Exam?, 54 Del.Med.J. 105 (1982)) for the proposition that "almost all male physicians call in a nurse or other female attendant to chaperone their pelvic examinations"9 and (b) another article (Registered Nurse A. Burgess, Physician Sexual Misconduct and Patients' Responses, 138 Amer.J. Psychiatry 1335 (1981)) for the concept "that females have been sexually abused by physicians during these exams and often feel powerless to stop the physician."
2. Practice as to Chaperons at City Facilities

Throughout the period relevant to these actions City had no policy of requiring a chaperon to be present at every pelvic examination (Slutsky Dep. 98). Rather a nurse was always assigned to be available should the physician or patient require assistance (Izenstark Aff. ¶ 3; Izenstark Dep. 69; Hairston Dep. 12).

Each of the testifying physicians and administrators negated any requirement of a chaperon (Muriel Dep. 34-35; Slutsky Dep. 98; D'Avis Dep. 40). Nor was any physician aware of a policy requiring him to inform patients they had a right to have a chaperon present (Muriel Dep. 34-35; Dye Dep. 55; Levinson Dep. 24-25). Each physician understood it was up to him to decide whether a chaperon was necessary (Slutsky Dep. 78-79; Muriel Dep. 34-35; Dye Dep. 53-55; D'Avis Dep. 40), although they uniformly indicated they honored patients' requests to have chaperons (Muriel Dep. 34-35; Dye Dep. 53; D'Avis Dep. 40). Nurses generally left it to the physicians to call them into the examining room (Hairston Dep. 16; Mycyk Dep. 6-7), and one nurse said if a doctor indicated he did not want a nurse present, the nurse "wouldn't insist" (Mycyk Dep. 5).

3. Complaints of Physician Misconduct Before the Jones Incident

Dr. Dye testified he had received no complaints of "inappropriate" sexual contact or behavior by any of the City's doctors before the Jones complaint (Dep. 11). He had received complaints of "rough treatment, harsh doctor, rough doctor, mouthy doctor," such as giving a rough (although proper) pelvic exam, failing to wear gloves or making rude comments (Dep. 11-12). Indeed the only complaints Dr. Dye had received with any arguably sexual overtones involved such possibly suggestive comments as "Do you do anything besides have babies?" (Dep. 13).

Similarly, Health Commissioner Dr. Hugo Muriel testified Jones' complaint was the first comparable one he had ever received (Dep. 129). Muriel's initial account of his conversation with Dr. Dye after the Jones complaint seemed to contradict Dr. Dye's testimony (Dep. 31-32):

A. And he Dye said, "Well, we always hear those kinds of complaints. Those are matters that we probably sit down with the patient and the doctor, and perhaps in most instances we resolve that." Or he indicated that it's not rare in public clinics or private clinics to have these sorts of complaints.
Q. Complaints — When we say these sorts of complaints, complaints by women that male personnel are making sexual advances?
A. Right.
Q. Or exhibits certain aggressive sexual conduct with respect to them during an examination or during a consultation?
A. I think so.

But Muriel later clarified that account, confirming Dr. Dye's deposition testimony as to his never having received a complaint of sexual advances before Jones's charge (Dep. 132-33):

THE WITNESS: Dr. Die sic indicated during our meeting, if I recollect well, that we never had any complaints; but we were talking in general in the medical practice. And he was referring to — I guess I didn't make it clear. He was referring to that there are complaints in cases that are brought to court by patients against medical doctors or health personnel. That's I believe what I meant to it doesn't read clearly here.
Q. All right. Now, let me specifically ask you, to your knowledge, has the Department either acquired directly or through Dr. Die or anyone else, has the Department of Health ever received any complaints before the Anita Jones incident of doctors engaging in improper sexual conduct towards patients?
A. He indicated that they never had any complaints of this nature of sexual —
Q. All right my question is —
A. — advances.
Q. My question is just a yes or no, whether it's to your
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