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JONES v. CITY OF CHICAGO

United States District Court, Northern District of Illinois, E.D


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
  (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.*fn8

    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"*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?

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 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
  Health?

A. No.

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 Aff.).

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 relevant period.

On that score, nursing supervisor Barbara Izenstark began working at the Westtown Clinic (site of the Padilla assault) in 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. N, P).

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
                              1983

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 rights.

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 697.

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 inference.*fn14

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 so.*fn15

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 prosecute.

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. 1980).

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 sustained."*fn18

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.

Conclusion

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.


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