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Jane Doe v. the University of Chicago

November 4, 2010

JANE DOE,
PLAINTIFF-APPELLANT,
v.
THE UNIVERSITY OF CHICAGO, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, DEFENDANT-APPELLEE
LONG HAN; VHS OF ILLINOIS, INC., A DELAWARE CORPORATION, D/B/A MACNEAL HOSPITAL; MN ANESTHESIA, AN ILLINOIS LIMITED LIABILITY COMPANY; CONTINENTAL ANESTHESIA, AN ILLINOIS LIMITED LIABILITY COMPANY,
DEFENDANTS.



Appeal from the Circuit Court of Cook County. No. 06 L 13017

The opinion of the court was delivered by: Justice O'brien

Honorable Jeffrey Lawrence,Judge Presiding.

JUSTICE O'BRIEN delivered the opinion of the court: Plaintiff, Jane Doe, appeals the order of the circuit court dismissing count XII of her sixth-amended complaint against defendant, the University of Chicago, for violations of the Gender Violence Act (740 ILCS 82/1 et seq. (West 2004)) arising out of a sexual assault and battery allegedly committed by Dr. Long Han on December 15, 2004. The issue on appeal is whether the Gender Violence Act may be retroactively applied to conduct by defendant that occurred prior to its effective date. We hold the Gender Violence Act may not be retroactively applied and affirm the circuit court.

In the sixth-amended complaint, plaintiff pleaded that Dr. Long Han was employed by defendant from 1989 through September 1, 1999, as an anesthesiologist in the department of anesthesia and critical care. During the course of Dr. Han's employment, defendant learned of at least six allegations of gender-related violence committed by Dr. Han against female co-workers and patients. On August 30, 1999, defendant and Dr. Han entered into a confidentiality agreement whereby defendant secured Dr. Han's resignation in return for defendant's promise it would "not provide information regarding complaints of sexual harassment made against [Dr. Han] during the course of his University employment." The confidentiality agreement also included an agreed-upon letter of reference from defendant to prospective future employers of Dr. Han, which specifically omits any reference to allegations of gender-related violence by Dr. Han against female co-workers and patients.

Plaintiff pleaded that on or before September 15, 1999, Dr. Han applied for appointment to the medical staff of Macneal Hospital. On or about September 15, 1999, the chairman of the credential committee of Macneal Hospital sent a letter to defendant requesting a candid, written appraisal of Dr. Han's clinical ability, ethical character, and his ability to work cooperatively with others during his residency. The letter specifically requested any information defendant may have warranting Macneal Hospital to exercise caution in granting staff privileges to Dr. Han. In response, defendant sent a letter on or about September 21, 1999, making no reference to any allegations or investigation into acts of gender-related violence committed by Dr. Han against female co-workers and patients.

Plaintiff pleaded that in either September or October 1999, Macneal Hospital awarded staff privileges to Dr. Han, which he maintained through and including December 2004. In December 2004, plaintiff was a nursing intern engaged in an obstetrics rotation at Macneal Hospital. During the course of her obstetrics rotation, Macneal Hospital placed plaintiff under the direct supervision of Dr. Han.

Plaintiff pleaded that on December 15, 2004, Dr. Han approached her and directed her to come into his private office at Macneal Hospital, under the pretext of receiving additional instruction related to her master's studies in nursing. Once inside his office, Dr. Han proceeded to move his hands underneath plaintiff's bra and touch her breasts without her permission or consent. Plaintiff immediately pulled away from Dr. Han and exited his office.

Plaintiff filed a sixth-amended complaint against Dr. Han, defendant, and other entities for damages caused by Dr. Han's alleged sexual assault on December 15, 2004. Count XII alleged a cause of action against defendant for violations of the Gender Violence Act (hereinafter the Act) (740 ILCS 82/1 et seq. (West 2004)). The Act provides victims of "gender-related violence," defined to include acts of sexual assault or battery, with a private right of action against those who personally committed the acts of gender-related violence and against those who encouraged or assisted the acts of gender-related violence. 740 ILCS 82/5, 10 (West 2004).

Specifically, plaintiff alleged in count XII of her sixth-amended complaint "[o]n and prior to December 15, 2004," defendant encouraged or assisted Dr. Han's acts of gender-related violence in one or more of the following respects:

a. covering up allegations of Dr. Han's repeated acts of gender-related violence by entering into the confidentiality agreement with Dr. Han;

b. failing to disclose to Macneal Hospital its knowledge of at least six allegations of gender-related violence committed by Dr. Han;

c. failing to discipline or sanction Dr. Han for acts of gender-related violence against female co-workers and patients;

d. failing to insist Dr. Han receive treatment as a precondition of further employment;

e. emboldening Dr. Han with a belief his gender-related violence would go unpunished ...


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