## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Flores v. Sant

iago , 2013 IL App (1st) 122454

Appellate Court Caption J ENN I FER FL ORES, Plaintiff-Appellant, v. MANUEL SANTIAGO, Def endant- Appellee

.

District & N o. First District, F irst Division Docke t No. 1-12-2454

Filed Marc h 11, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The appellate court reve rsed the dismiss al of plaintiff’s complaint ag ainst

an eye doctor alleg ing battery and a violation of th e I l l i n ois Gende r Violence Act based on the s exual relations defe ndant had with plaintiff whi l e treating her eye ailment, notwithstanding defe ndant’s contention that the rela

tions wer e consensua l, since plaintiff alleg ed d ef endant provided her with illega l drug s on various occa sions when sexual contac t

occur red and she could possibly prove she was intox icated and could not have c onsented.

Dec ision Under Review Appea l from the Circuit Court of Cook County , No.12-L -657; the Hon. J eff ery L awr ence , J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Deutschma n & Associates, P.C., of Chicag o (Jeffre y S. De utschman, of counsel), f

or appe llant.

Godzecki, Del Guidice, A m er i cus & Fa rkas, L L P, of C hicag o (Richar d A. Del Guidice and Steven H. L eec h, of counse l), for a ppellee.

Panel J USTI CE DEL ORT delivere d the judg ment of the c ourt, with opinion. Presiding J u s tice Hoffma n and J ustice Cunningham concur red in the judgme nt and opinion.

OP INION

¶ 1 The Hippocratic Oath, taken by phy sicians s i nce time immemorial, states t hat medica l providers must abstain from sexual relations with their patients. Plaint i ff
, J ennifer Flore s, visited de fenda

nt, D r. Manuel Santiag o, for treatment reg arding an ey e ailment. Acc ording
to her, the vi s i t s en t ai l ed more than ey e treatment beca use Dr. Santiag o doped her with narcotics and then eng ag ed in sexual acts with her. We hold that her amende d complaint stated a valid cause of action and there fore re v erse and rema nd the case for further
proce eding s. ¶ 2 On J anuar

y 19, 2012, plaintiff sued the defe ndant and alleg ed that he violated section 10 of t h e I llinois Gende r Violence Act (Ac t) (740 I L CS 82/10 (West 2010)) and committed battery upon her. On Marc h 7, 2012, defe ndant filed a motion to dismiss under section 2-615 of the I llinois Code of Civil Procedur e (Code) (735 I L CS 5/2-615 (West 2010)), arguing that plaintiff failed to alleg e sufficie nt fac ts to show that defe ndant’s alleg ed sexual contac t with the plaintiff was without the plain ti f f’s consent. Def

endant also argued that the alleg ed sexual
contac t was not of the ty pe th at t h e Act was intended to addre ss. On April 30, 2012, the circ uit court g rante d the motion to dis miss, but gra nted plaintiff leave to re plead. ¶ 3 On May 25, 2012, plaintiff filed the amende d complaint that is the subject of this a ppeal. Plaintiff reple aded counts all egi n g a violation of the Act and common law battery

. Both

co u n t s contain common alleg ations of fac t, which we take as true for the purpose of t h i s appea l. Marshall v. Burger King Corp. , 222 I ll. 2d 422, 429 (2006). ¶ 4 The amende d complaint alleg es that defe ndant is a licensed phy sician doing business as the “Oak Park Ey e Center” in Oak Park, I llinois

. In approximately J une 2 0 1 1
, p l aintiff beca me a patient of defe ndant for treatment reg arding her ey es. During J u ne 2011 and there afte r, defe ndant would flirt, tease and play with the plaintiff during numerous chec kups and regular evalua

tions. Whil e plaintiff was a patient of d ef en d an t , they had sexual intercour se and oral sexual contac t on a number of occa sions. The sexual activity was not part of any standard medical examination, diag nosis or trea tment for pl ai n t iff’s health problems.

-2-¶ 5 The amende d complaint also alleg es that this sexual relationship constituted a misuse of

defe ndant’s authority
, and that the doctor-patient relationship rende red plaintiff unable to consent to any sexual contac t with the defe ndant. Medica l literature alleg edly indicates that
many patients have fee lings of depende ncy and transfe renc e toward their phy sicians that may cont inue long afte r the profe ssional relationship ends. Def endant alleg edly eng ag ed in unethical conduct by exploi ting the trust, knowledg e, emotions or influence derive d from the parties’ profe ssional relationship. ¶ 6 The amende d complaint further alleg es that on almost ever y occas i o n wh en s ex u al
contac t occur

red, defe ndant provided pl ai n t i ff with illega l drug s, including marijuana
, hashish and cocaine. On at l east one occa sion, defe ndant allege dly prov i d ed p l aint iff with

a full bottle of liquid coca ine hy drochloride

. De fe n d an t alleg edly knew of plaintiff’s

weakness and susceptibility to drug use, which allowed him to take unfair advanta g e of her. Plaintiff alleg edly devel o p ed o r rela psed into a depende ncy and beca me psy cholog ically controlled by the defe ndant. Plaintiff asserte d that she wa s unable to conse nt to any sexual
contac t with the defe ndant as a result of be ing plied w ith ill eg al drug s. ¶ 7 The amende d complaint asser ts that the fac ts establish cause s of action for a violation of section 10 of the A ct and f or common law battery

. ¶ 8 On J une 2 1
, 2 0 1 2
, d ef en d ant filed a motion to dismiss the amende d complaint under section 2-615 of the Code. Def endant also submitt ed a memorandum of law arguing that: (1)
t h e p l aintiff failed to alleg e sufficie nt fac ts to show that the alleg ed sexual contac t wa s without the plaintiff’s consent; and (2) the alleg ed sexual contac t was not of the ty pe that the Act was intended to addre ss. On August 21, 2012, afte r briefing
, the circ uit court enter ed an order g ranting defe ndant’s motion to dismiss

. Plaintiff filed a timely notice of appea l to this court on August 22, 2012.

¶ 9 ANALYSI S ¶ 10 On appea l, plaintiff ar gu es t h at t h e ci rc u i t court err ed in dismiss ing her a mended complaint pursuant to sect i o n 2-615 of the Code. “A section 2-615 motion to dismiss [citation] challeng es the leg al suff i ci ency of a complaint based on defe cts appar ent on its fac e.” Marshall
, 222 I ll. 2d at 429. “In revie wing the sufficie ncy of a complaint, we acc ept

as true all well-plea ded fa ct s and all rea sonable infere nces that may be drawn from those fac ts,” and we “construe the allegations in the complaint i n the l ight most favor able to the plaintiff.” Id

. I llinois is a fac t-pleading jurisdiction, and a plaintiff must alleg e fac ts sufficie nt to bring a claim within a leg ally rec og nized cause of action. Id

. at 429-30. Howeve r, “a cause of action should not be dismiss ed pursuant to section 2-615 unless it is clea rly appar ent that

no set of fac ts can be proved that would en title the plaintiff to rec overy .” Id

. at 429. We revie w an or der grantingor deny ing a section 2-615 motion de novo

. Id. ¶ 11 Count I of the amende d complaint claimed that the defe ndant violated section 10 of the Act, which pr ovides as follows: “Any person who has been subjected to g ender -re lated violence as define d in Sec tion 5
may bring a civil action for damag es, injunctive relief
, or other appropr iate relief ag ainst

a person or persons perpe trating that g ender -re l ated violence. For purposes of this

-3-Section, ‘per petrating’ means either persona lly committing the g ender -re lated violence

or persona lly encour ag ing or assisti n g t h e ac t or acts of g ender -re lated violence.” 740 I L CS 82/ 10 (West 2010). ¶ 12 Section 5 of the Ac t provides that:

“In this Act, ‘g ender -re lated violence’
, which is a form of sex discrimination, means the following : (1) One or more a cts of violence or phy sical aggression satis fying the elements of battery under the laws of I llinois that are committed, at le ast in pa rt, on the basis of a person’ s sex, whether or not those acts have resulted in crim inal char g es, prosec ution, or conviction. (2) A phy sical intrusion or phy sical invas i o n of a sexual nature under coer cive conditions satisfying the elements of battery under the laws of I llinois
, whether or not the ac t or ac ts resulted in criminal cha rg es, prose cution, or convic tion. (3) A threa

t of an act descr ibed in item (1) or (2) causing a rea listi c appre hension that the orig inator of the thr eat will commit the act.” 740 I L CS 82/ 5 (West 2010). ¶ 13 A court’s “primar y objective in construing a statute is to asce rtain and g ive eff ect to the intent of the legi slature.” Poris v. Lake Holiday Property Owners Ass’n
, 2013 I L 113907, ¶ 47. “The most reliable indicator of the leg islature’s intent is the plain languag e of the statute.” Id

. “When the statutory languag e is clea r and unambig uous, it should be applied as written without resort to extrinsi c aids or t ools of interpre tation.” Id . In this case, the pla in languag e of the Act clea

rly indicates that a plaintiff is require d to prove an act or conditions “satisfying the elements of battery under the laws of I llinois ” (or a threat there of). 740 I L CS 82/5(2) (West 2010). Acc ording ly
, plaintiff is require d to alleg e such an act or conditions in this case to survive a dismiss al of both he r statutory claim under the Act in count I

and her common law cla im of battery in count I Iof her

amende d complaint. ¶ 14 Thus, we turn to consider the elements of battery under I llinois law. Ge nera lly , battery is committed by an individual if: “ ‘(a ) he acts intendin g t o ca u s e a harmful or offe nsive
contac t with the person of the other or a third person, or an imminent appre hension of such

a contac t, and (b) a harmful contac t with the p er s o n o f the other direc tly or indirectly results.’ ” Bake

s v. St. Alexius Medic al Center
, 2011 I L App (1st) 101646, ¶ 2 2 (q uoting Restatement (Sec ond) of Tor ts § 13 (1965)). I llinois courts have stated that battery may be d efined as the wilful touching of the person of another or a succe ssful attemp t t o co m m i t violence on the person of another. Bake s , 2011 I LApp (1st) 101646, ¶ 22 ( and cases cited there in). We have also define d battery as involving defe ndant perf orming some aff

irmative
act intended to cause an unpermitted contac t. Id

. “ ‘[T] he g ist of the action for battery is not the hostile intent of the defe ndant, but rathe r the absenc e of consent to the contac t on the part of the plaintiff.’ ” Country Mutual Insurance Co. v. Olsak
, 391 I ll. App. 3d 295, 306 (2009) (quoting Cowan v. Insurance Co. of North America , 22 I ll. App. 3d 883, 890 (1974)). ¶ 15 In this case , defe ndant’s motion to dismiss primarily argued that plaintiff failed to alleg e specific fac ts establishing an absenc e of consent to the sexual contac t. Plaintiff responds that she did plead specific fac ts reg arding lack of consent, arg uing t h at the doctor-patient relationship and the alleg ed supplying of illega l drug s both vitiate any consent to the sexual

-4-contac t. We consider plaintiff’ s second a rgument, as we find it disposi tive. ¶ 16 Plaintiff argues that any consent was vitiated in this case beca use the defe ndant alleg edly plied her with illega l drug s on almost ever y occa sion of sexual contac t. Def endant does not deny that sever e intox ication may rende r a pe rson unable to c onsent to sexual contac t. See People v. V

a ug h n , 2 0 1 1 I L App (1st) 092834, ¶ 37; see also Doe v. Psi Upsilon International
, 2011 I L App (1st) 110306, ¶ 4 (in a case broug ht unde r the Act, the plaintiff

was alleg edly intox icated when she awa kened during an allege d sexual assault afte r a fraternity party

); People v. Fisher
, 281 I ll. App. 3d 395, 403 (1996) (dec lining to spe culate

as to what events, short of loss of cons ci o u s n es s throug h alcohol consumption, would be likewise suffic ient to show inability to c onsent). Rather, defe ndant argues that in this case, plaintiff failed to make sufficie nt alleg ation s t hat the drug usag e rende red plaintiff unconscious, incapa citated or unawa re of the sexual contac t. Def endant also no t es t hat plaintiff does not alleg e that she was under the influence of drug s on ever y occa sion of sexual
contac t. ¶ 17 That defendant did not supply plain t iff with drug s on ever y occa sion of sex ual contac t is not fata l to the complaint. I llinois law rec og nizes that episodes of nonconsensua l sex may

occur within a g ener ally consensua l relationship, even if they are difficult to prove. See People v

. M. D.
, 2 3 1 I ll. App. 3d 176, 192 (1992) (finding no rational basis for the marital exemption reg arding acts of forc ible sexual conduct)

. In this case , plaintiff specific ally alleg ed that defe ndant provided plaintiff with illega l drug s, including marijuana
, hashish and

coca ine–a full bottle of liquid coca ine hy drochloride on at least one occa sion. Plaintiff also specific ally alleg ed that s h e was without the ability to consent to any sexual contac t with defe ndant as a result of being plied with these illega l drug s. Ba sed on these alleg ations, plaintiff may be able to pr ove a lack of consent based on se vere intox ication. Acc ording ly
, we conclude that the circ uit court err ed in dismiss ing the amende d complaint pursuant to section 2-615 of

the Code. ¶ 18 Given our conclusion on the issue of lack of consent based on intox ication, we need not addre ss the other arg

uments plaintiff prese nt ed in this appea l. We note that I llinois has

rec og nized the potential for harm cause d by sexual activity betwee n profe ssionals and their clients. There is an evolving patchwor k of regu latory authority on the issue. L awyers, for instance, are prohibited from eng ag ing in a s ex u al re l ati onship with clients, unless a

consensua l rel at ionship exis ted when the attorney -client relationship beg an. I ll. R. Prof. Conduct R. 1

. 8 (j ) (ef

f. J an. 1, 2010). Cf. Suppressed v. Suppressed
, 206 I ll. App. 3d 918 (1990) ( illust ratingdifficulty of pl eading cause of ac tion for attorne y -client sexual activity befor e adoption of rule); Doe v. Roe
, 289 I ll. App. 3d 116, 130-31 (1997) (plaintiff sufficie ntly pled claim for brea ch of fiduciar y duty arising from attorney -c l i en t sexual activity ). I llinois also provides a statutory cause of action reg arding sexual exploi t ation in
psy chother apy

. 740 I L CS 140/2 (West 2010). Howeve r, under that statute, “ ‘Psy chother apy ’

means the profe ssional treatment, assessment, or counseling of a mental or emotional illness,
sy mptom, or condition” and does not extend to other ty pes of medical treatment. See 740 I L CS 140/1(e) (West 2010). The Depa rtment of Financ ial and Professional R egu lation forbids psy cholog ists from eng ag ing in sexual relations with clients, and restri ct s such
contac t with an ex-client to at least 24 months afte r termination of t re at m en t

. S ee 68 I ll.

-5-Adm. Code 1400. 8 0 (i ) (2012). The Medica l Practice Act of 1987 provides that the

Depa rtment of Financ ial and Professional Regulation may take disciplinary or nondisciplinary action ag ainst licensee s, including phy sicians, for “[i] mmoral conduct in the commission of any act including, but not l i m i t ed t o , commission of an act of sexual misconduct related to the licensee ’s pra ctice.” 225 I L CS 60/ 22(A)( 20) (West 2010). Some I llinois phy sicians have b ee n s u b ject to disciplinary action under the “sex ual m isconduct” clause for eng ag ing in sexua l ac t i v ity with their clients. See, e.g. , Parikh v. Division of Professional R eg u l a tion of the Department of Financial & Professional Regulation
, 2012 I L App (1st) 121226. Howeve r, there appea rs to be no leg al authority in I llinois straig htforwa

rdly establishing a private cause of action ag ainst phy sicians wh o eng ag e in sexual relations with their patients. ¶ 19 The Americ an Medica l Association Code of M ed i ca l Ethics addre sses the issue in the following terms: “Opinion 8.14–Sexual Mi sconduct in the Prac tice of Me dicine
Sex ual contac t t h at occur s concur rent with the patient-phy sician rela tionship constitutes sexual misconduct. Sex ual or romantic interac tions betwee n phy sicians and patients detra ct from the g oals of the phy sician-patient relationship, may exploi t the vulnera bility of the patient, may obscure the phy sician’s objective judgme nt conce rning the patient’s he alth car e, and ultimately may be detrimental to the patient’s well-be ing.
I f a phy sician has rea s o n t o b el i ev e that non-sexual contac t with a patient may be
perc eived as or m ay lead to sexual contact, then he or she should avoid the non-sexual
contac t. At a mi n i mum, a phy sician’s ethical duties include terminating the phy sicianpatient relationship befor e initiat i n g a d ating
, romantic, or sexual rela tionship with a patient.
Sex u al or romantic relationships betwee n a phy sician and a former patient may be unduly influence d by the previous phy sician-patient rela tionship. Sex ual or romantic relationships with former patients ar e unethical if the phy sician uses or exploi ts trust, knowledg e, emotions, or influence derive d from the previous profe ssional relationship.” Americ an Medica l Association, Code of Medica l Ethics, Opinion. 8.1 4 ( 1 989), available

a t htt p :/ /w ww

. a ma

- a s s n .org/ama/pub/phy sician-r esourc es/ me d ic a l- e th ic s /c o d e

- me d ic a lethics/opinion814.pag e? (last visited Fe b. 26, 2013). ¶ 20 Some commentators have urg ed courts to fashion such ethics rules into cause s of action,

so that their violation would establish a damag es claim for brea ch of a quasi-fiduc iary duty

. See, e.g. , Tanya J

. Dobash, Note, Phy sician-Patient Sex ual Contact: the Battle Be tween the State and the Medica l Profession, 50 Wash. & L ee L

. Rev. 1725, 1746 (1993). Be cause we find that the amende d complaint in this cas e states a fac ially valid battery claim–and thus also for violation of the Act–we leave for another day the issue of whether a cause of action in cas es l i k e t his might lie for brea ch of fiduciar y duty or based solely on the phy sicianpatient re lationship.

¶ 21 CONCLUSI ON ¶ 22 In sum, we conclude that the circ uit court of Cook County err ed in dismiss ing pla intiff’s

-6-amende d complaint pursuant to section 2-615 of t he Code. For all of the afor ementioned

rea sons, the judgme nt of the circ uit court is reve rsed and the case is reman d ed for further
proce eding s consistent with this opi nion.

¶ 23 Reverse d and re manded.

-7-