Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County. No. 13 L 12633. Honorable Kathy M. Flanagan, Judge Presiding.
For Plaintiff-Appellant: Jacob B. Shorr, Asony & Associates, Chicago, IL.
For Defendant-Appellee: Catherine L. Garvey, Anthony J. Longo, Cassiday Schade LLP, Chicago, IL.
SIMON, PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices Neville and Pierce concurred in the judgment and opinion.
SIMON, PRESIDING JUSTICE
[¶1] On December 4, 2009, plaintiff Veronica Hasbun filed a four-count complaint against defendants Resurrection Health Care Corporation (Resurrection), PCC Community Wellness Center (PCC), and Dr. Yam S. Tong, sounding in assault and battery, negligent supervision, negligence, and intentional infliction of emotional distress. The case was removed to the United States District Court for the Northern District of Illinois (District Court) pursuant to the Westfall Act (28 U.S.C. § 2679 (2006)) before being remanded to the circuit court of Cook County. On June 3, 2011, the trial court dismissed the counts for assault and battery and intentional infliction of emotional distress. The negligence and negligent supervision counts were stayed after plaintiff filed a second complaint in federal court sounding in negligence and negligent supervision against the United States and Resurrection. Eventually plaintiff's second federal complaint was amended to include only a single count for negligence, which was dismissed by the District Court and from which no appeal was filed in the federal courts. In the circuit court, the case was then removed from the stay calendar and reinstated. The circuit court dismissed the remaining counts sounding in negligence and negligent supervision on January 13, 2014, pursuant to the doctrine of res judicata and entered final judgment on the matter.
[¶2] Plaintiff appealed the June 3, 2011, and January 13, 2014, circuit court orders. However, on appeal, plaintiff only presents argument that the trial court erred in dismissing the assault and battery and intentional infliction of emotional distress counts on June 3, 2011. Plaintiff asserts that the circuit court erred in holding that Resurrection could not be liable for Dr. Tong's sexual assault of plaintiff and that, as a matter of law, hospitals should not be able to avoid liability for sexual assault committed by physicians during the course of treatment. For the following reasons, we dismiss plaintiff's appeal.
[¶3] I. BACKGROUND
[¶4] A. Plaintiff's Complaint in the Circuit Court of Cook County
[¶5] On December 4, 2009, plaintiff filed a four-count complaint in the circuit court of Cook County against defendants sounding in assault and battery, negligent supervision, negligence, and intentional infliction of emotional distress. Plaintiff alleged that she was experiencing abdominal pains on January 22, 2009, and made an appointment to see Dr. Tong, an obstetrician and gynecologist at PCC at Resurrection's West Suburban Medical Center. At her appointment, plaintiff initially entered the examination room with a female nurse. The nurse went over routine questions with plaintiff, including whether plaintiff had been pregnant or miscarried, and took plaintiff's blood pressure and weight. The nurse then left the examination room, telling plaintiff that she was going to bring the doctor in who would then begin the examination.
[¶6] Dr. Tong entered the examination room alone and asked plaintiff, who was sitting on an examination table, whether she had any prior pregnancies or miscarriages. Plaintiff expected the nurse to come back into the room and monitor the exam but, despite the absence of a nurse, Dr. Tong forced plaintiff's feet into the stirrups and pulled plaintiff's thighs downward toward the end of the table. Dr. Tong did not say anything, but began his physical examination of plaintiff.
[¶7] Dr. Tong eventually told plaintiff that she is " a very attractive woman" and asked if she had a lot of sexual partners. Dr. Tong began " playing with [plaintiff's] labia. He pulled and spread the skin and made comments such as, 'It smells good, very pretty, very nice and clean.'" Dr. Tong completed what plaintiff considered a typical digital examination of the vagina, but then continued to move his fingers in and out of plaintiff's vagina and wiggled them while inside of her. When he completed the examination, Dr. Tong remained standing between plaintiff's legs, which remained spread open. Dr. Tong discussed the exam results while he stroked her thighs and hair, leaned in close to plaintiff's face, and continued " smiling a lot" the entire time. ...