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JONES v. CITY OF CHICAGO

April 23, 1985

ANITA JONES, PLAINTIFF,
v.
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
  against him.*fn3

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:*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
  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.*fn5
    (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
  ...

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