                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Flores v. Santiago, 2013 IL App (1st) 122454




Appellate Court            JENNIFER FLORES, Plaintiff-Appellant, v. MANUEL SANTIAGO,
Caption                    Defendant-Appellee.



District & No.             First District, First Division
                           Docket No. 1-12-2454


Filed                      March 11, 2013


Held                       The appellate court reversed the dismissal of plaintiff’s complaint against
(Note: This syllabus       an eye doctor alleging battery and a violation of the Illinois Gender
constitutes no part of     Violence Act based on the sexual relations defendant had with plaintiff
the opinion of the court   while treating her eye ailment, notwithstanding defendant’s contention
but has been prepared      that the relations were consensual, since plaintiff alleged defendant
by the Reporter of         provided her with illegal drugs on various occasions when sexual contact
Decisions for the          occurred and she could possibly prove she was intoxicated and could not
convenience of the         have consented.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No.12-L-657; the Hon.
Review                     Jeffery Lawrence, Judge, presiding.




Judgment                   Reversed and remanded.
Counsel on                 Deutschman & Associates, P.C., of Chicago (Jeffrey S. Deutschman, of
Appeal                     counsel), for appellant.

                           Godzecki, Del Guidice, Americus & Farkas, LLP, of Chicago (Richard
                           A. Del Guidice and Steven H. Leech, of counsel), for appellee.


Panel                      JUSTICE DELORT delivered the judgment of the court, with opinion.
                           Presiding Justice Hoffman and Justice Cunningham concurred in the
                           judgment and opinion.



                                              OPINION

¶1          The Hippocratic Oath, taken by physicians since time immemorial, states that medical
        providers must abstain from sexual relations with their patients. Plaintiff, Jennifer Flores,
        visited defendant, Dr. Manuel Santiago, for treatment regarding an eye ailment. According
        to her, the visits entailed more than eye treatment because Dr. Santiago doped her with
        narcotics and then engaged in sexual acts with her. We hold that her amended complaint
        stated a valid cause of action and therefore reverse and remand the case for further
        proceedings.
¶2          On January 19, 2012, plaintiff sued the defendant and alleged that he violated section 10
        of the Illinois Gender Violence Act (Act) (740 ILCS 82/10 (West 2010)) and committed
        battery upon her. On March 7, 2012, defendant filed a motion to dismiss under section 2-615
        of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)), arguing that
        plaintiff failed to allege sufficient facts to show that defendant’s alleged sexual contact with
        the plaintiff was without the plaintiff’s consent. Defendant also argued that the alleged sexual
        contact was not of the type that the Act was intended to address. On April 30, 2012, the
        circuit court granted the motion to dismiss, but granted plaintiff leave to replead.
¶3          On May 25, 2012, plaintiff filed the amended complaint that is the subject of this appeal.
        Plaintiff repleaded counts alleging a violation of the Act and common law battery. Both
        counts contain common allegations of fact, which we take as true for the purpose of this
        appeal. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006).
¶4          The amended complaint alleges that defendant is a licensed physician doing business as
        the “Oak Park Eye Center” in Oak Park, Illinois. In approximately June 2011, plaintiff
        became a patient of defendant for treatment regarding her eyes. During June 2011 and
        thereafter, defendant would flirt, tease and play with the plaintiff during numerous checkups
        and regular evaluations. While plaintiff was a patient of defendant, they had sexual
        intercourse and oral sexual contact on a number of occasions. The sexual activity was not
        part of any standard medical examination, diagnosis or treatment for plaintiff’s health
        problems.

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¶5         The amended complaint also alleges that this sexual relationship constituted a misuse of
       defendant’s authority, and that the doctor-patient relationship rendered plaintiff unable to
       consent to any sexual contact with the defendant. Medical literature allegedly indicates that
       many patients have feelings of dependency and transference toward their physicians that may
       continue long after the professional relationship ends. Defendant allegedly engaged in
       unethical conduct by exploiting the trust, knowledge, emotions or influence derived from the
       parties’ professional relationship.
¶6         The amended complaint further alleges that on almost every occasion when sexual
       contact occurred, defendant provided plaintiff with illegal drugs, including marijuana,
       hashish and cocaine. On at least one occasion, defendant allegedly provided plaintiff with
       a full bottle of liquid cocaine hydrochloride. Defendant allegedly knew of plaintiff’s
       weakness and susceptibility to drug use, which allowed him to take unfair advantage of her.
       Plaintiff allegedly developed or relapsed into a dependency and became psychologically
       controlled by the defendant. Plaintiff asserted that she was unable to consent to any sexual
       contact with the defendant as a result of being plied with illegal drugs.
¶7         The amended complaint asserts that the facts establish causes of action for a violation of
       section 10 of the Act and for common law battery.
¶8         On June 21, 2012, defendant filed a motion to dismiss the amended complaint under
       section 2-615 of the Code. Defendant also submitted a memorandum of law arguing that: (1)
       the plaintiff failed to allege sufficient facts to show that the alleged sexual contact was
       without the plaintiff’s consent; and (2) the alleged sexual contact was not of the type that the
       Act was intended to address. On August 21, 2012, after briefing, the circuit court entered an
       order granting defendant’s motion to dismiss. Plaintiff filed a timely notice of appeal to this
       court on August 22, 2012.

¶9                                              ANALYSIS
¶ 10       On appeal, plaintiff argues that the circuit court erred in dismissing her amended
       complaint pursuant to section 2-615 of the Code. “A section 2-615 motion to dismiss
       [citation] challenges the legal sufficiency of a complaint based on defects apparent on its
       face.” Marshall, 222 Ill. 2d at 429. “In reviewing the sufficiency of a complaint, we accept
       as true all well-pleaded facts and all reasonable inferences that may be drawn from those
       facts,” and we “construe the allegations in the complaint in the light most favorable to the
       plaintiff.” Id. Illinois is a fact-pleading jurisdiction, and a plaintiff must allege facts sufficient
       to bring a claim within a legally recognized cause of action. Id. at 429-30. However, “a cause
       of action should not be dismissed pursuant to section 2-615 unless it is clearly apparent that
       no set of facts can be proved that would entitle the plaintiff to recovery.” Id. at 429. We
       review an order granting or denying a section 2-615 motion de novo. Id.
¶ 11       Count I of the amended complaint claimed that the defendant violated section 10 of the
       Act, which provides as follows:
           “Any person who has been subjected to gender-related violence as defined in Section 5
           may bring a civil action for damages, injunctive relief, or other appropriate relief against
           a person or persons perpetrating that gender-related violence. For purposes of this

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           Section, ‘perpetrating’ means either personally committing the gender-related violence
           or personally encouraging or assisting the act or acts of gender-related violence.” 740
           ILCS 82/10 (West 2010).
¶ 12       Section 5 of the Act provides that:
           “In this Act, ‘gender-related violence’, which is a form of sex discrimination, means the
           following:
                    (1) One or more acts of violence or physical aggression satisfying the elements
               of battery under the laws of Illinois that are committed, at least in part, on the basis
               of a person’s sex, whether or not those acts have resulted in criminal charges,
               prosecution, or conviction.
                    (2) A physical intrusion or physical invasion of a sexual nature under coercive
               conditions satisfying the elements of battery under the laws of Illinois, whether or not
               the act or acts resulted in criminal charges, prosecution, or conviction.
                    (3) A threat of an act described in item (1) or (2) causing a realistic apprehension
               that the originator of the threat will commit the act.” 740 ILCS 82/5 (West 2010).
¶ 13       A court’s “primary objective in construing a statute is to ascertain and give effect to the
       intent of the legislature.” Poris v. Lake Holiday Property Owners Ass’n, 2013 IL 113907,
       ¶ 47. “The most reliable indicator of the legislature’s intent is the plain language of the
       statute.” Id. “When the statutory language is clear and unambiguous, it should be applied as
       written without resort to extrinsic aids or tools of interpretation.” Id. In this case, the plain
       language of the Act clearly indicates that a plaintiff is required to prove an act or conditions
       “satisfying the elements of battery under the laws of Illinois” (or a threat thereof). 740 ILCS
       82/5(2) (West 2010). Accordingly, plaintiff is required to allege such an act or conditions in
       this case to survive a dismissal of both her statutory claim under the Act in count I and her
       common law claim of battery in count II of her amended complaint.
¶ 14       Thus, we turn to consider the elements of battery under Illinois law. Generally, battery
       is committed by an individual if: “ ‘(a) he acts intending to cause a harmful or offensive
       contact with the person of the other or a third person, or an imminent apprehension of such
       a contact, and (b) a harmful contact with the person of the other directly or indirectly
       results.’ ” Bakes v. St. Alexius Medical Center, 2011 IL App (1st) 101646, ¶ 22 (quoting
       Restatement (Second) of Torts § 13 (1965)). Illinois courts have stated that battery may be
       defined as the wilful touching of the person of another or a successful attempt to commit
       violence on the person of another. Bakes, 2011 IL App (1st) 101646, ¶ 22 (and cases cited
       therein). We have also defined battery as involving defendant performing some affirmative
       act intended to cause an unpermitted contact. Id. “ ‘[T]he gist of the action for battery is not
       the hostile intent of the defendant, but rather the absence of consent to the contact on the part
       of the plaintiff.’ ” Country Mutual Insurance Co. v. Olsak, 391 Ill. App. 3d 295, 306 (2009)
       (quoting Cowan v. Insurance Co. of North America, 22 Ill. App. 3d 883, 890 (1974)).
¶ 15       In this case, defendant’s motion to dismiss primarily argued that plaintiff failed to allege
       specific facts establishing an absence of consent to the sexual contact. Plaintiff responds that
       she did plead specific facts regarding lack of consent, arguing that the doctor-patient
       relationship and the alleged supplying of illegal drugs both vitiate any consent to the sexual

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       contact. We consider plaintiff’s second argument, as we find it dispositive.
¶ 16       Plaintiff argues that any consent was vitiated in this case because the defendant allegedly
       plied her with illegal drugs on almost every occasion of sexual contact. Defendant does not
       deny that severe intoxication may render a person unable to consent to sexual contact. See
       People v. Vaughn, 2011 IL App (1st) 092834, ¶ 37; see also Doe v. Psi Upsilon
       International, 2011 IL App (1st) 110306, ¶ 4 (in a case brought under the Act, the plaintiff
       was allegedly intoxicated when she awakened during an alleged sexual assault after a
       fraternity party); People v. Fisher, 281 Ill. App. 3d 395, 403 (1996) (declining to speculate
       as to what events, short of loss of consciousness through alcohol consumption, would be
       likewise sufficient to show inability to consent). Rather, defendant argues that in this case,
       plaintiff failed to make sufficient allegations that the drug usage rendered plaintiff
       unconscious, incapacitated or unaware of the sexual contact. Defendant also notes that
       plaintiff does not allege that she was under the influence of drugs on every occasion of sexual
       contact.
¶ 17       That defendant did not supply plaintiff with drugs on every occasion of sexual contact
       is not fatal to the complaint. Illinois law recognizes that episodes of nonconsensual sex may
       occur within a generally consensual relationship, even if they are difficult to prove. See
       People v. M.D., 231 Ill. App. 3d 176, 192 (1992) (finding no rational basis for the marital
       exemption regarding acts of forcible sexual conduct). In this case, plaintiff specifically
       alleged that defendant provided plaintiff with illegal drugs, including marijuana, hashish and
       cocaine–a full bottle of liquid cocaine hydrochloride on at least one occasion. Plaintiff also
       specifically alleged that she was without the ability to consent to any sexual contact with
       defendant as a result of being plied with these illegal drugs. Based on these allegations,
       plaintiff may be able to prove a lack of consent based on severe intoxication. Accordingly,
       we conclude that the circuit court erred in dismissing the amended complaint pursuant to
       section 2-615 of the Code.
¶ 18       Given our conclusion on the issue of lack of consent based on intoxication, we need not
       address the other arguments plaintiff presented in this appeal. We note that Illinois has
       recognized the potential for harm caused by sexual activity between professionals and their
       clients. There is an evolving patchwork of regulatory authority on the issue. Lawyers, for
       instance, are prohibited from engaging in a sexual relationship with clients, unless a
       consensual relationship existed when the attorney-client relationship began. Ill. R. Prof.
       Conduct R. 1.8(j) (eff. Jan. 1, 2010). Cf. Suppressed v. Suppressed, 206 Ill. App. 3d 918
       (1990) (illustrating difficulty of pleading cause of action for attorney-client sexual activity
       before adoption of rule); Doe v. Roe, 289 Ill. App. 3d 116, 130-31 (1997) (plaintiff
       sufficiently pled claim for breach of fiduciary duty arising from attorney-client sexual
       activity). Illinois also provides a statutory cause of action regarding sexual exploitation in
       psychotherapy. 740 ILCS 140/2 (West 2010). However, under that statute, “ ‘Psychotherapy’
       means the professional treatment, assessment, or counseling of a mental or emotional illness,
       symptom, or condition” and does not extend to other types of medical treatment. See 740
       ILCS 140/1(e) (West 2010). The Department of Financial and Professional Regulation
       forbids psychologists from engaging in sexual relations with clients, and restricts such
       contact with an ex-client to at least 24 months after termination of treatment. See 68 Ill.

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       Adm. Code 1400.80(i) (2012). The Medical Practice Act of 1987 provides that the
       Department of Financial and Professional Regulation may take disciplinary or
       nondisciplinary action against licensees, including physicians, for “[i]mmoral conduct in the
       commission of any act including, but not limited to, commission of an act of sexual
       misconduct related to the licensee’s practice.” 225 ILCS 60/22(A)(20) (West 2010). Some
       Illinois physicians have been subject to disciplinary action under the “sexual misconduct”
       clause for engaging in sexual activity with their clients. See, e.g., Parikh v. Division of
       Professional Regulation of the Department of Financial & Professional Regulation, 2012
       IL App (1st) 121226. However, there appears to be no legal authority in Illinois
       straightforwardly establishing a private cause of action against physicians who engage in
       sexual relations with their patients.
¶ 19        The American Medical Association Code of Medical Ethics addresses the issue in the
       following terms:
            “Opinion 8.14–Sexual Misconduct in the Practice of Medicine
                Sexual contact that occurs concurrent with the patient-physician relationship
            constitutes sexual misconduct. Sexual or romantic interactions between physicians and
            patients detract from the goals of the physician-patient relationship, may exploit the
            vulnerability of the patient, may obscure the physician’s objective judgment concerning
            the patient’s health care, and ultimately may be detrimental to the patient’s well-being.
                If a physician has reason to believe that non-sexual contact with a patient may be
            perceived as or may lead to sexual contact, then he or she should avoid the non-sexual
            contact. At a minimum, a physician’s ethical duties include terminating the physician-
            patient relationship before initiating a dating, romantic, or sexual relationship with a
            patient.
                Sexual or romantic relationships between a physician and a former patient may be
            unduly influenced by the previous physician-patient relationship. Sexual or romantic
            relationships with former patients are unethical if the physician uses or exploits trust,
            knowledge, emotions, or influence derived from the previous professional relationship.”
            American Medical Association, Code of Medical Ethics, Opinion. 8.14 (1989), available
            at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-
            ethics/opinion814.page? (last visited Feb. 26, 2013).
¶ 20        Some commentators have urged courts to fashion such ethics rules into causes of action,
       so that their violation would establish a damages claim for breach of a quasi-fiduciary duty.
       See, e.g., Tanya J. Dobash, Note, Physician-Patient Sexual Contact: the Battle Between the
       State and the Medical Profession, 50 Wash. & Lee L. Rev. 1725, 1746 (1993). Because we
       find that the amended complaint in this case states a facially 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 cases like this might lie for breach of fiduciary duty or based solely on the physician-
       patient relationship.

¶ 21                                    CONCLUSION
¶ 22      In sum, we conclude that the circuit court of Cook County erred in dismissing plaintiff’s

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       amended complaint pursuant to section 2-615 of the Code. For all of the aforementioned
       reasons, the judgment of the circuit court is reversed and the case is remanded for further
       proceedings consistent with this opinion.

¶ 23      Reversed and remanded.




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