Statutory Tort – Sexual Exploitation Act

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Statutory Tort – Sexual Exploitation Act

Female Patient sues Family Practitioner under the Sexual Exploitation in Psychotherapy Act of Illinois, claiming that he treated her for depression with drugs and counseling while engaging in a sexual relationship with her for over 2 years. Since the matter settled at trial, the instructions below were only a working draft of initial instructions.

IPI 1.01 – Modified by the court to be read at end of case, and updated by IPI Committee in 2009 to include old IPI 3.01 language)

Now that the evidence has concluded, I will further instruct you as to the law and your duties. The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. [Each party, whether a ________________________ or (i.e., corporation, partnership, etc.) an individual, should receive your same fair consideration.]

I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

The use of cell phones, text messaging, Internet postings and Internet access devices in connection with your deliberations violates the rules of evidence and you are prohibited from using them

You must make your decision based on what you recall of the evidence. You will not receive a written transcript of the testimony when you retire to the jury room.

An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

3.02 Witness Who Has Been Interviewed by Attorney

An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not reflect adversely on the truth of the testimony of the witness.

IPI 3.04 Circumstantial Evidence

A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 3.08 – Opinion Testimony

You have heard a witness give opinions about matters requiring knowledge and skill. You should judge this testimony in the same way you judge the testimony from any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’ qualifications, and all of the other evidence in the case

IPI 15.01 Proximate Cause—Definition [Updated Sept.2009]

When I use the expression “proximate cause,” I mean a cause that, in the natural or

ordinary course of events, produced the plaintiff’s injury. [It need not be the only cause,

nor the last or nearest cause. It is sufficient if it combines with another cause resulting in

the injury.]

IPI 150.01 — Actions based on Statutes/Modified

There was in force in the State of Illinois at the time of the occurrence in question a statute called The Sexual Exploitation in Psychotherapy Act of Illinois providing that a cause f action against a psychotherapist for sexual exploitation exists for a patient for injury caused by sexual contact with the psychotherapist, if the sexual contact occurred during the period the patient was receiving psychotherapy from the psychotherapist. It is not a defense to the action that sexual contact with a patient occurred outside a therapy or treatment session or that it occurred off the premises regularly used by the psychotherapist for therapy or treatment sessions.

IPI 150.01 — Actions based on Statutes/Modified

There was in force in the State of Illinois at the time of the occurrence in question a statute called t The Sexual Exploitation in Psychotherapy Act of Illinois providing that an employer of a psychotherapist may be liable if the employer fails or refuses to take reasonable action when the employer knows or has reason to know that the psychotherapist engaged in sexual contact with a patient of the psychotherapist, if the sexual contact occurred during the period the patient was receiving psychotherapy from the psychotherapist.

NON IPI – Modified Definitions under Sexual Exploitation Act 740 ILCS 140 et seq

Under The Sexual Exploitation in Psychotherapy Act of Illinois “Psychotherapy” is defined as the professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition. “Psychotherapy” does not include counseling of a spiritual or religious nature, social work, or casual advice given by a friend or family member.

Under The Sexual Exploitation in Psychotherapy Act of Illinois “Psychotherapist” is defined as a physician, psychologist, nurse, chemical dependency counselor, social worker, or other person, whether or not licensed by the State, who performs or purports to perform psychotherapy.

Under The Sexual Exploitation in Psychotherapy Act of Illinois “Sexual Contact” is defined as any of the following, whether or not occurring with the consent of a patient or former patient:

(1) sexual intercourse, cunnilingus, fellatio, anal intercourse or any intrusion, however slight, into the genital or anal openings of the patient’s body by any part of the psychotherapist’s body;

(2) kissing or intentional touching by the psychotherapist of the patient’s genital area, groin, inner thigh, buttocks, or breast or the clothing covering any of these body parts;

(3) kissing or intentional touching by the patient of the psychotherapist’s genital area, groin, inner thigh, buttocks, or breast or the clothing covering any of these body parts if the psychotherapist agrees to the kissing or intentional touching.

20.01.01 Issues Made by the Pleadings

As to the Defendant, Dr. John Doe, the Plaintiff, Mary Smith, claims

that she was injured and sustained damage as a result of his wrongful conduct in that Dr. Doe had sexual contacts with Ms. Smith during the time he rendered to her professional treatment, assessment or counseling of a mental or emotional illness, symptom, or condition in violation of The Sexual Exploitation in Psychotherapy Act of Illinois.

The plaintiff, Mary Smith, further claims that the foregoing was a proximate cause of her injuries.

The defendant, Dr. John Doe, denies that he did any of the things claimed by the plaintiff, denies that he violated The Sexual Exploitation in Psychotherapy Act of Illinois in doing any of the things claimed by the plaintiff, and denies that any claimed act or omission on his part was a proximate cause of the plaintiff’s claimed injuries.

20.01.01 Issues Made by the Pleadings

As to the Defendant, ACME Medical Group, the Plaintiff, Mary Smith,

claims that she was injured and sustained damages as a result of its wrongful conduct in that

The ACME Medical Group failed or refused to take reasonable action when, as the employer of Dr. Doe, it knew or should have known that Dr. Doe had sexual contacts with Ms. Smith during the time he rendered to her professional treatment, assessment or counseling of a mental or emotional illness, symptom, or condition in violation of The Sexual Exploitation in Psychotherapy Act of Illinois.

The plaintiff, Mary Smith, further claims that the foregoing was a proximate cause of her injuries.

The defendant, ACME Medical Group, denies that it did any of the things claimed by the plaintiff, denies that it violated The Sexual Exploitation in Psychotherapy Act of Illinois in doing any of the things claimed by the plaintiff, and denies that any claimed act or omission on the defendant’s part was a proximate cause of the plaintiff’s claimed injuries.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which a party has the burden of proof is more probably true than not true.

B21.02.02 Burden of Proof on the Issues MODIFIED

As to the Defendant, Dr. John Doe, the Plaintiff, Mary Smith, has the burden of proving each of the following propositions:

First, that Dr. Doe had sexual contacts with Ms. Smith during the time he rendered to her professional treatment, assessment or counseling of a mental or emotional illness, symptom, or condition in violation of The Sexual Exploitation in Psychotherapy Act of Illinois.

Second, that Ms. Smith was injured.

Third, that the acts of Dr. Doe were a proximate cause of the injury to Ms. Smith.

If you find from your consideration of all the evidence that each of these propositions has been proved as to defendant, then your verdict should be for the plaintiff as to the defendant.

On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved as to the defendant, then your verdict should be for the defendant.

B21.02.02 Burden of Proof on the Issues MODIFIED

As to the Defendant, ACME Medical Group, the Plaintiff, Mary Smith, has the burden of proving the following propositions:

First, The ACME Medical Group failed or refused to take reasonable action when, as the employer of Dr. Doe, it knew or should have known that Dr. Doe had sexual contacts with Ms. Smith during the time he rendered to her professional treatment, assessment or counseling of a mental or emotional illness, symptom, or condition in violation of The Sexual Exploitation in Psychotherapy Act of Illinois.

Second, that Ms. Smith was injured.

Third, that the acts of ACME Medical Group were a proximate cause of the injury to Ms. Smith.

If you find from your consideration of all the evidence that each of these propositions has been proved as to defendant, then your verdict should be for the plaintiff as to the defendant.

On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved as to the defendant, then your verdict should be for the defendant.

IPI 30.01 Measure of Damages [Modified – Reserved]

If you decide for the Plaintiff, Mary Smith, on the question of liability, then you must then fix the amount of money which will reasonably and fairly compensate her for the Emotional Distress experienced and reasonably certain to be experienced in the future proved by the evidence to have resulted from the wrongful conduct of a defendant or the defendants, taking into consideration the nature, extent and duration of the injury and the aggravation of any pre-existing ailment or condition.

Whether damages have been proved by the evidence is for you to determine.

30.21 Measure of Damages—Personal Injury—Aggravation of Pre–Existing Condition—No Limitations

If you decide for the plaintiff on the question of liability, you may not deny or limit the plaintiff’s right to damages resulting from this occurrence because any injury resulted from an aggravation of a pre-existing condition or a pre-existing condition which rendered the plaintiff more susceptible to injury.

IPI.36.01 In Absence of Liability—No Occasion to Consider Damages

If you decide for a defendant on any claim on the question of liability, then you will have no occasion to consider the question of damages as to that defendant.

41.03 Two or More Defendants

The rights of the Defendants, Dr. John Doe and ACME Medical Group, are separate and distinct. Each is entitled to a fair consideration of each’s own defense and you will decide each defendant’s case separately as if it were a separate lawsuit. Each defendant’s case must be governed by the instructions applicable to that case.

50.02 Principal Sued But Not Agent—No Issue as to Agency

Mickey Mantle and Roger Maris Johnson were the agents of the Defendant, ACME Medical Group, at the time of this occurrence. Therefore, any act or omission of the agent at that time was in law the act or omission of the Defendant, ACME Medical Group.

B45.03 Instruction on Use of Verdict Forms—Negligence Only—Single Plaintiff and Multiple Defendants

When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.

Your verdict must be unanimous.

Forms of verdicts are supplied with these instructions. After you have reached your verdict, fill in and sign the appropriate form and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

The parties in this case are:

Plaintiff: Mary Smith

Defendants: Dr. John Doe and ACME Medical Group

If you find for the Plaintiff, Mary Smith, and against one or more of the Defendants, Dr. John Doe and ACME Medical Group, then you should use Verdict Form A.

If you find for all of the Defendants, Dr. John Doe and ACME Medical Group, and against the Plaintiff, Mary Smith, then you should use Verdict Form B.

VERDICT FORM A

We, the jury, find for the Plaintiff, Mary Smith, and against the following defendant or defendants:

Dr. John Doe YES _____ NO _____

ACME Medical Group YES _____ NO _____

We find the total amount of damage suffered by Mary Smith as a proximate result of

the occurrence in question is $_____________________________________.

[Signature Lines ]

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(Foreperson

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VERDICT FORM B

We, the jury, find for all of the defendants and against the plaintiff, Mary Smith.

[Signature Lines ]

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(Foreperson

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