Years before the rise of the “#MeToo” movement, the Illinois Gender Violence Act (IGVA) was enacted to give victims of criminal “gender violence” a civil remedy. The IGVA creates a civil cause of action for persons who have been subjected to gender-related violence, which is defined in part as, “a physical intrusion or physical invasion of a sexual nature under coercive conditions satisfying the elements of battery under the laws of Illinois.” A cause of action under the IGVA exists regardless of whether the alleged act of sexual aggression resulted in criminal charges, prosecution, or conviction. Essentially, any claim involving sexual harassment and physical touching could arguably fall within the scope of the statute.
A cause of action brought under the IGVA is concerning for three reasons:
- The IGVA provides for a seven year statute of limitations, which is much longer than the statute of limitations for common law battery and other claims
- Plaintiffs may obtain punitive damages if they prevail
- Attorney’s fees and costs may be awarded
Additionally, the IGVA provides that a cause of action may be brought against both the person committing the gender-related violence and those who have encouraged or assisted it. In fact, in some cases—such as Stanfield v. Cook County and Cruz v. Primary Staffing, Inc.—courts have imposed liability on an employment supervisor who “turned a blind-eye” to repeated acts of gender violence and upon an employer who failed to take action to address complaints of sexual harassment.
Health care employers should take note of the IGVA, because theoretically, physician groups and hospitals could face exposure for alleged acts of gender violence committed by their employed physicians and mid-level providers or medical staff members.
Medical professionals should also be aware of this statute and the implications it could have on the practice of medicine. Under the IGVA, gender-related violence could arguably be interpreted to include any routine medical examination of reproductive organs which the patient subjectively believes to be inappropriate and therefore unwanted. For example, urologists, OB/GYNs, proctologists, mammography technologists, family physicians, internists, plastic surgeons, and others whose professional obligations require examination of reproductive organs, could face significant risk exposure to future IGVA claims.
To curb IGVA claims, it is crucial that medical professionals remain vigilant in obtaining written informed consent to perform examinations and procedures where indicated. Furthermore, using medical records to document that these consent conversations occurred, and/or that an opt-out conversation took place, could be beneficial in defending such a claim.