APPEAL from the Circuit Court of Du Page County; the Hon.
BRUCE R. FAWELL, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Richard Rudi, the defendant, is an oral surgeon who was charged with aggravated battery, battery, and unlawful restraint, stemming from alleged misconduct with a patient on July 26, 1976. Defendant was convicted after a jury trial only of misdemeanor battery and fined $1,000. He appeals, contending that he was not proved guilty beyond a reasonable doubt; and, alternatively, that trial errors precluded a fair trial.
The complainant testified that she went to the dentist's office to have two molars removed. She was accompanied by her husband who remained in the reception room. She was taken to a room where X rays were taken and had a brief conversation with defendant in which he explained the anesthetic which he then gave her. The nurse was in the room at that time. She said the next thing she can remember is waking up. She felt his hand on her left breast and heard defendant's voice saying "how does it feel? Does it feel good? Do you like it?" She said she felt his hand rubbing her left breast and at some interval that he took her hand and put it on the outside of his pants "on his penis, and he had a full erection." She continued that he was pushing her hand up and down in a rubbing action and repeating "Do you like that? How does it feel? Does it feel good?" She knew it felt that there was clothing between her hand and his penis. She said she didn't hear anyone else in the room and that she kept her eyes closed because she didn't want him to know that she was awake. She heard the door start to open and said that defendant shoved her hand back and then she heard the nurse's voice. The nurse took her to the recovery room, where she said she began crying. She proceeded to the receptionist's office where her husband paid the bill. She finally told her husband why she was crying as they were leaving the parking lot.
On cross-examination, complainant testified that she did not remember if she went back to the defendant's office to have her stitches removed. She said she wouldn't have wanted to go back to his office and that if she did go back "it was the nurse and not him." On redirect examination she conceded that stitches had been removed and that she was not seeing any other oral surgeon. She had seen Dr. Rudi on a previous occasion and had oral surgery and couldn't remember who removed the stitches after that occasion.
The complainant's husband testified that his wife was crying and almost hysterical when she emerged from the recovery room on July 26. After repeated questioning as to the reason for her crying, she finally told him what had happened as they left in the car. He said at first he was going to go back inside and that the complainant asked him not to.
The defendant's wife testified that she was working as defendant's receptionist on July 26. She said that the complainant was not crying hysterically after the operation and that when she was told about the post-operative instruction she listened very carefully.
Judith Kern testified that she was an employee of defendant on July 26, 1976, and remains in his employ. She assisted defendant during the complainant's surgery. She said that during the procedures her arms and elbows would touch the complainant's breasts and shoulders. Also, that the defendant leaned across the complainant so that his arms and elbows would be across her shoulders and chest. She further testified that during the surgery defendant stated to Mrs. Ryan: "Do you feel the pressure, Dear? Just relax and take it easy, Honey." She said that she at no time left the doctor alone with the patient. When the surgery was over she told the complainant to open her eyes, that it was time for her to go home, and that the defendant told her we were going to let her lie down for a while in the recovery room.
On cross-examination, over defendant's objection, she testified that all the nurses in the office never leave the patient when they are under anesthesia and that has been the practice in the 10 years she has worked for the defendant.
Defendant testified in his own behalf that he performed the surgery on the complainant, assisted by Judith Kern. He said he asked questions of the complainant during surgery to determine the level of anesthetic. He said that Judith Kern never left the room until they both assisted the complainant to the recovery room. He denied he was guilty of the battery and aggravated battery charges.
The State called several witnesses in rebuttal to Kern's testimony concerning office procedure, over the objection of defense counsel. Four female witnesses testified that when they had surgery performed by defendant, they were alone in the room with defendant for a period of time. Two of the witnesses related incidents occurring in 1966-68, while the other two referred to 1974 operations.
Three experts testified concerning the effects of the drugs administered to complainant as anesthetics. In summary, the State's witness, Dr. Collins, testified that patients emerging from anesthetic are able to appreciate stimulation and that delusion or emergence delirium and hallucination are not recognized side effects of the drugs used. Defendant's expert, Dr. Ziporyn, identified documents prepared by drug companies which contain, among other things, a list of adverse side effects of the drugs used on the complainant. These side effects included delusion and hallucination. Dr. Ziporyn testified that he had witnessed patients hallucinating or experiencing confusion under the influence of Valium, which was one of the drugs given to complainant.
A directed verdict of not guilty was entered on the unlawful restraint count at the close of the State's case. The jury found defendant not guilty of aggravated battery but guilty of battery.
In arguing that the State's evidence is insufficient to sustain a conviction beyond a reasonable doubt the defendant emphasizes the complainant's failure to complain to anyone of defendant's actions until she was on her way home and to the fact that she obviously returned to the office to have her stitches removed. He argues that both of these circumstances are contrary to human experience, casting doubt on her testimony as to the actual conduct of defendant. Defendant also argues that the complainant translated innocent sensations from the fact that he and his nurse were required to make certain contacts with her in the course of the operation and to inquire about her feelings into a false accusation of impropriety due to the effects of the anesthesia. In this context he relies on various writings to support the thesis that sexual fantasies by women directed at their doctors are not uncommon.
The jury was apprised of the fact that patients can hallucinate or suffer delusions while under, or emerging from, anesthesia; but there was no evidence that complainant was not in touch with reality at the time in question. Although we consider the case to be close on its circumstances, it revolved essentially on the credibility of the witnesses and their testimony; and, barring ...