United States District Court, Northern District of Illinois, E.D
April 23, 1985
ANITA JONES, PLAINTIFF,
CITY OF CHICAGO, DEFENDANT. GLORIA PADILLA, PLAINTIFF, V. CITY OF CHICAGO, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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.*fn1
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' Claims*fn2
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
1. Its policies with respect to chaperonage
were consistent with prevailing and accepted
2. Its investigation of the Jones incident was
3. Jones's complaint was the first ever
received by City against any physician alleging
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:*fn4
(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
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
(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:*fn6
1. Dr. Dye, in his capacity as Director of
Women's Health,*fn7 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
2. Plaintiffs' Mem. 9-10 quotes (without
providing a copy or page reference) T.H. Green,
Gynecology — Essentials of Clinical Practice
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"*fn9 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?
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.
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
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
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 personal knowledge or whether you
received that information from anyone else, are
you aware of any complaints of that kind before
the Anita Jones incident in the Department of
Westtown Clinic Director Steve Ochoa testified he could not
recall receiving any complaints before the Jones incident of
physicians "talking dirty," "being inappropriate" or "making
sexual moves against" patients (Dep. 20). Coordinator of
Health Administration Review Richard Dymowski also said the
Jones complaint was the first on record charging sexual
misconduct by a City physician (Dymowski Aff.).
4. Investigation of Jones Incident
Shortly after the alleged June 11, 1981 assault by Dr.
D'Avis, Jones complained to clinic personnel and dictated a
statement describing the incident (Pl.Ex.F). Within a day or
two a copy of her statement was sent to Dr. Herbert Slutsky,
Department's personnel director (Slutsky Dep. 33). On June 15
Drs. Slutsky and Muriel met with Dr. D'Avis, who denied
Jones's allegations and agreed to take a lie detector test
(Slutsky Dep. 52-53, 56-57, 60).
Next day Dr. Slutsky met with Department Deputy Commissioner
Terry Hocin, who recommended turning investigation of the
Jones incident over to City's Office of Municipal
Investigations ("OMI") because of Dr. Muriel's friendship with
Dr. D'Avis (Hocin Dep. 21-22). In the meantime Department
arranged to have Dr. D'Avis take a polygraph examination
(Pl.Ex.J) and to have sworn statements taken from Jones and
several nurses (Pl.Exs.H, I). Results of the polygraph
examination were favorable to Dr. D'Avis (Pl.Ex.J).
On July 31, 1981 OMI received the Jones complaint and began
its investigation (Maurer Aff. ¶ 4). That complaint was the
first of its kind ever received by OMI (id. ¶ 5). OMI conducted
an extensive investigation: numerous interviews; review of
depositions, the polygraph results and other documentation
assembled by Department; and background investigation of Dr.
D'Avis (attachments to Maurer Aff.). On November 13, 1981 OMI
determined Jones's charges were "not sustained." During the OMI
investigation the State's Attorney's office had also reviewed
the incident but declined to prosecute (Attachment 18 to Maurer
While the investigation was pending, Department permitted
Dr. D'Avis to continue his normal medical practice. Although
Department considered requiring Dr. D'Avis to have female
chaperons present during pelvic examinations, it decided not
to do so. It was recommended to Dr. D'Avis that he follow such
a practice, but the decision was still left with him as with
all other doctors (Slutsky Dep. 105).
5. Post-Jones Complaints Against Dr. D'Avis
Padilla was assaulted March 1, 1982 (but she did not report
it until August 10, 1982) (Pl.Ex.P). After the Padilla
incident other patients lodged some complaints (involving
alleged comments, not conduct of a sexual nature) against Dr.
D'Avis, but the situation before March 1 is of course the
On that score, nursing supervisor Barbara Izenstark began
working at the Westtown Clinic (site of the Padilla assault)
about October 1981 (Izenstark Dep. 31), four months after the
Jones incident. "Several months" after she arrived at the
clinic, she became aware of some complaints that patients felt
uncomfortable with Dr. D'Avis because he "talked dirty" to
them (id. at 27-28, 30).*fn10 Izenstark had some difficulty in
her deposition pinning down dates, but it was in April 1982
(after the Padilla incident had occurred but before Mrs.
Padilla had said anything about it to Department personnel)
that she decided the complaints against Dr. D'Avis were serious
enough to warrant compiling written statements from patients.
Two such statements were taken April 14 and April 22 (Pl.Exs.
Although Izenstark was fairly certain there had been at
least some complaints to nurses before March 1982 (Dep. 48),
she apparently took no action before mid-April to bring the
complaints to the attention of any of Dr. D'Avis' superiors.
At that time she had a conversation with Dr. D'Avis'
supervisor Dr. Sophie Levinson.*fn11
On April 23 Drs. Levinson and Izenstark, together with Mr.
Ochoa, met with Dr. D'Avis and confronted him with the recent
complaints (Pl.Ex.Q). Dr. Levinson instituted a policy
requiring all Dr. D'Avis' future pelvic exams to be chaperoned
(id.). Izenstark then ordered her nurses to chaperon Dr.
D'Avis' exams regardless of his wishes (Pl.Ex. O at 3).
Finally, when Padilla reported her March 1 assault in August,
Dr. Muriel referred the matter to OMI once again for
investigation (Pl.Ex.R). One week later Dr. D'Avis resigned
(Pl.Ex. 5),*fn12 and in October OMI closed its file for lack
of jurisdiction (Pl.Ex.T).
Standards of Municipal Liability under Section
As this Court said in the Opinion, 580 F. Supp. at 405:
Absent some formally promulgated standard of
conduct (such as an ordinance or administrative
regulation), a Section 1983 cause of action
against a municipality must be grounded on some
direct municipal act or omission or some
municipal policy, custom or practice that in
either event proximately caused the employee
tortfeasor to inflict the harm on the plaintiff.
Negligence may be enough to support a Section 1983 claim for
supervisory omissions causally related to the direct
wrongdoing of subordinates (McKinnon v. City of Berwyn,
750 F.2d 1383
, 1391 (7th Cir. 1984)), but Lenard v. Argento,
699 F.2d 874
, 885 (7th Cir. 1983) emphasized a municipality can be
held liable for such omissions "only when there is an extremely
high degree of culpability for inaction." Lenard, id. at 885-86
approved Second Circuit decisions holding liability for failure
to supervise may be grounded only on "gross negligence" or
"deliberate indifference" to the plaintiff's constitutional
Lenard, id. also suggested (citing Turpin v. Mailet,
619 F.2d 196, 201 (2d Cir. 1980)) such a high degree of culpability
cannot be proved except by a pattern of constitutionally
offensive acts, in the face of which municipal officials have
refused or failed to take remedial action. Other courts too
have required plaintiffs to show a pattern of offensive conduct
rather than a single isolated incident. McLelland v. Facteau,
610 F.2d 693, 697 (10th Cir. 1980); see Means v. City of
Chicago, 535 F. Supp. 455, 459
(N.D.Ill. 1982) and cases there cited.*fn13
In all candor, it is simply wrong for courts to insist on a
pattern of misconduct as an invariable precondition to
municipal liability. Proximate cause is the key — and as
elsewhere in the law, that means a proximate cause, not the
proximate cause. Of course municipal ignoring of a series of
offenses (say beatings of citizens by policemen) can be viewed
as a proximate cause of the next similar offense. But it is
equally obvious that with some kinds of conduct, municipal
liability could follow from the first offense by a municipal
employee. To pose an extreme example, suppose a city opted to
arm all its policemen with hairtrigger automatic pistols rather
than ordinary handguns. Surely a factfinder could rationally
find that municipal conduct was a (not the) proximate cause of
the first subsequent killing by a trigger-happy officer. In
Lenard language, the municipality would have shown an
"extremely high degree of culpability," even though only one of
its employees had been guilty of misconduct.
But the "pattern" cases do teach a lesson important for this
case: No municipality may be held liable for its indifference
to the mere possibility of a constitutional deprivation. Rather
the plaintiff must show the municipality was aware either of
actual deprivations or of such a strong likelihood of imminent
(though unrealized) deprivations that any reasonable person
would have taken preventive measures. McLelland, 610 F.2d at
City's Liability for the Jones Assault
By those standards City cannot be held liable for Dr.
D'Avis' assault on Jones. City's conduct before that incident
was neither "gross negligence" nor "deliberate indifference."
By all accounts, Dr. D'Avis' assault on Jones was the first of
its type ever brought to City's attention. Neither Department
Commissioner Dr. Muriel, Department recordkeeper Dymowski nor
clinic director Ochoa was aware of any prior complaints of
sexual misconduct against City physicians. Similarly, Women's
Health Services Director Dr. Dye had never been made aware of
a complaint of sexual misconduct beyond an assertedly
suggestive comment. Clearly no prior conduct had alerted City
to any degree of probability of the Jones assault.
Nor, given the evidence, need this Court decide whether
City's failure to require chaperons during pelvic
examinations, had it been in contravention of medical
community standards, could render City liable for the Jones
assault. Every affidavit indicates City's chaperon policy was
consistent with that of the Chicago medical community. No
admissible evidence tendered by plaintiffs leads to a contrary
Plaintiffs argue City departed from medical community
standards by failing to require physicians to inquire whether
patients desired chaperons. Once again, such a departure (if
it existed) would not rise to the level of culpability
required for City's Section 1983 liability. Moreover there is
nothing to indicate physicians failed to
make such inquiries as a matter of course — or more to the
point, that City was aware of any such failure. Indeed Dr.
Nichols' affidavit, sought to be relied on so heavily by
plaintiffs, reflected the inquiry as to chaperons would most
appropriately be made by the nurse or aide who prepares the
patient for her examination. Nothing in the record indicates
nurses failed to make such inquiries or were not expected to do
Finally, all the foregoing analysis makes clear City cannot
possibly be found liable for a failure to "monitor" or
investigate male physicians who chose not to have chaperons
present during their examinations. As Dr. Nichols' affidavit
reflects, such a choice may be the result of legitimate
concerns of either the physician or his patient.*fn16 That
choice cannot by any stretch be said to put City on notice
— at peril of Section 1983 liability — of the material
likelihood of a sexual assault.
City's Liability for the Padilla Assault
All that distinguishes the Padilla claim from the Jones
claim is that City was aware of Jones's charges against Dr.
D'Avis before the Padilla assault. No City official then knew
of any other complaints of misconduct against Dr. D'Avis.
City's actions or omissions before March 1 must be measured in
light of Department's internal investigation (including the
polygraph examination favorable to D'Avis), the November 13
OMI finding of "not sustained" and the knowledge the State's
Attorney's office had reviewed the D'Avis file and declined to
Under the standards already discussed, the issue is whether
City's failure to discipline Dr. D'Avis or to require
chaperons during his pelvic examinations, in light of its
knowledge of the Jones incident, constituted gross negligence
or deliberate indifference to Padilla's constitutional rights.
Though requiring a chaperon would (at least in retrospect)
have been prudent, and though such a requirement would have
prevented the Padilla assault, City's failure to mandate
chaperonage does not subject it to Section 1983 liability.
It is undisputed Dr. D'Avis had an unblemished record before
the Jones incident. Dr. Muriel, a fellow Bolivian and social
acquaintance, had known Dr. D'Avis for many years. When Dr.
D'Avis vehemently denied Jones's charge and submitted to a lie
detector test with favorable results, the officials were faced
with the word of a colleague against the word of a patient.
Given their association with Dr. D'Avis, the obvious
vulnerability of any doctor to such charges and the apparent
clearing of Dr. D'Avis by the polygraph, the officials (and
hence City) cannot reasonably be faulted for having resolved
any doubts in favor of Dr. D'Avis.
That is not to say City's officials did not take the charges
seriously. They conducted an extensive internal investigation
and then turned the case over to OMI for an independent
investigation. Their actions cannot be deemed to have
encouraged Dr. D'Avis or to have acquiesced in his
misconduct.*fn17 Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.
Nearly nine months elapsed between the Jones charges and the
Padilla incident. So far as City's officials knew, Dr. D'Avis
had comported himself in a professional and perfectly
acceptable manner during that
period. More than three months before the Padilla episode the
OMI Investigative Summary had found the Jones charges "not
Under those circumstances the Section 1983 standards for
City immediately before the Padilla assault are not to be
distinguished from those before Jones's charges. It is all too
easy to second-guess what City should have done in retrospect,
but that is not the Section 1983 test. City's failure to
require chaperons in March 1982 cannot be deemed "grossly
negligent" or "deliberately indifferent" to the constitutional
rights of a patient in Padilla's position.
There is no genuine issue of material fact in either case.
City cannot in any sense be deemed culpable with respect to
the Jones incident. Even if it could be viewed as negligent as
to Padilla (a questionable conclusion in all events), any such
shortcoming does not even approach the level required to
render City liable under Section 1983. City is entitled to a
judgment as a matter of law in each case. These actions are
dismissed with prejudice.