Jones v. City of Chicago, 82 C 2943
Citation | 608 F. Supp. 994 |
Decision Date | 23 April 1985 |
Docket Number | 82 C 6390.,No. 82 C 2943,82 C 2943 |
Court | United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois) |
Parties | Anita 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.
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.
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.
Plaintiffs argue City's liability for Dr. D'Avis' actions arises from City's failure to:
City responds:
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
Plaintiffs have sought to rebut that affidavit testimony by reference to several items:6
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).
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):
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):
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