Facts

During a visit in 2007, plaintiff Kathy Freitas, in her 60s, alleged that her physician, Dr. Horace Bixby Newhard, 78, sexually violated her by conducting a vaginal examination and breast examination after starting her on hormone replacement therapy for atrophic vaginitis and vaginal itch. Plaintiff claimed that Dr. Newhard had embraced and kissed her before she left. Plaintiff's allegations led to an investigation by the Novato Police Department, followed by criminal charges against Dr. Newhard in 2008.

The defense called as witnesses Plaintiff's current treating primary care physician, her gynecologist and her treating plastic surgeon, who all testified that for the period after the alleged assault, Plaintiff never reported to them that she was suffering any symptoms related to post-traumatic stress disorder (PTSD) or that she was under any care of a mental therapist for PTSD. Furthermore, Plaintiff had three appointments with Dr. Roland Minami in 2008 seeking plastic surgery services without showing any signs of the claimed inability to be in a room alone with a male.

Plaintiff sued Dr. Newhard in this civil action for sexual battery and intentional infliction of emotional distress.

PLAINTIFF'S CONTENTIONS:
Plaintiff alleged that she suffered PTSD, which included avoidance, anxiety, inability to have relationships with males, and difficulty sleeping.

DEFENDANT'S CONTENTIONS:
Dr. Newhard contended that he was following his usual diagnosis and treatment method since he had placed Plaintiff on hormone replacement therapy and had not conducted a baseline vaginal or breast examination on Plaintiff for over four years. Plaintiff had a family history of breast cancer.

Dr. Newhard also contended that Plaintiff has misinterpreted his examination and his hug and kiss. Dr. Newhard claimed that Plaintiff did not suffer from PTSD and never once mentioned to her treating physicians, including her plastic surgeon, that she had any mental disorder or PTSD following the examination by Dr. Newhard in 2007.

Settlement Discussions

Plaintiff demanded $650,000 before trial. Defendant offered a waiver of costs for dismissal with prejudice.

Damages

Plaintiff claimed $450,000 in emotional distress damages.

Result

A jury acquitted Dr. Newhard of two counts related to sexual battery and emotional distress damages and deadlocked on a third. In November 2011, prosecutors dismissed the unresolved charge after he surrendered his medical credentials and ended his more than 50 years of practice.

Deliberation

four hours

Poll

12-0 (defense on sexual battery), 9-3 (defense on intentional emotional distress)

Length

12 days