Examining Motivation Patients accuse Anacostia doctor of inappropriate breast exams.

In 1991, Anacostia resident Evelyn Holiday was suffering from high blood pressure. She paid a visit to Dr. Peter Kwon in a nearby medical park for treatment, but in a complaint filed in D.C. Superior Court, Holiday says Kwon proceeded to examine more than her blood pressure. In her complaint, Holiday alleges that under the pretense of checking her breathing, Kwon lifted up her blouse, fondled her breasts, and pinched her nipples—and that he engaged in similar acts during every subsequent exam she received between 1991 and 1993.

Even though she felt that the exams were of questionable value, Holiday didn’t say anything at first. In an interview, Holiday explains that she was depressed, suicidal, and under the care of a psychiatrist when she first started seeing Kwon. “I was out of it,” says Holiday. “I didn’t want to accuse him of doing something because I wasn’t sure what he was doing.”

She continued to see Kwon almost monthly for two years and, according to her complaint, believes that while he was giving her breasts extra attention, he failed to diagnose a cyst on her spine that she had complained about for months. As time passed, she became more uncomfortable with Kwon. “I tried to tell people”—her family, other doctors—“but nobody paid me no attention,” she says.

It wasn’t until 1994, when an attorney, David Davenport, came to her apartment to interview an injured friend that Holiday told her story to someone who took her seriously. Davenport told her she might have a civil case against Kwon, and now Holiday is one of six D.C. women with similar stories who are suing Kwon. Kwon settled a similar case in 1995 for an undisclosed sum. The women’s complaints charge Kwon with unlawful acts of assault, battery, unlawful touching, sexual assault, sexual abuse, sexual misconduct, and medical malpractice. The first case is set to go to trial in June before Superior Court Judge Judith Retchin.

In his deposition, Kwon says he has done nothing wrong and that he was merely giving his patients competent, thorough medical care. He testified that he gives the same breast exam to every woman who comes into his office if more than 30 days have passed since her last visit and if she complains of anything more than just a “finger cut.” He dutifully noted the exams in medical records that are now a part of the court file.

Kwon declined to be interviewed for this story, but referred questions to Patricia Tazzara, an attorney with the law firm Montedonico, Hamilton & Altman. In a phone interview, Tazzara said, “He does [breast exams] with their understanding and consent.” Tazzara dismisses the allegations as mostly hearsay generated by a group of women who all knew each other and by lawyers interested in making a buck off her client.

“He [Kwon] has got some very ambitious counsel out there. We do feel that these cases are a setup,” says Tazzara. “The plaintiffs’ attorneys have tried to solicit other ladies on this. They tried to make this a class action, which the court has rejected. Dr. Kwon has hundreds of loyal patients just like these women.”

In fact, lawyers for the plaintiffs tried to convince Judge Retchin that if Kwon had molested six women, he had likely molested many others. Not only did Retchin reject their request for a class action on behalf of all Kwon’s female patients, but she also severed the case filed jointly by three women. Each of those cases must now be tried separately. She has also barred the plaintiffs from presenting witnesses who would testify that they had similar experiences with Kwon. The judge’s decisions severely hamper the women’s case, but the plaintiffs are continuing to push forward with the litigation nonetheless.

The Kwon case is imbued with a host of delicate issues that don’t often see the inside of a courtroom. The case demonstrates how race, class, and power can color the relationship between doctor and patient.

Kwon has been practicing in the District since 1980. He studied medicine in Korea, but trained in the U.S. as well, and now lives with his wife and family in Maryland. A Korean immigrant, Kwon is one of but a handful of family practitioners who attend to the medical needs of thousands of families in Anacostia. Court records indicate that 70 percent of his more than 1,000 patients are women and that most are African-American and on Medicaid. Tazzara argues that Kwon is a victim of his client base.

“He’s in the Anacostia Medical Park. He’s one of the only ones there,” Tazzara says. “It’s a rough area and a difficult practice.” She also says the plaintiffs have a host of mental and emotional problems that undermine their credibility. “You’ve got heroin dependency and mental problems that haven’t been treated well,” says Tazzara.

The women suing Kwon have conflicted medical and personal histories that complicate their case; for example, Joyce Wheeler is an HIV-infected heroin addict, according to medical records introduced as evidence in the case. The plaintiffs’ attorneys describe their clients as poor and not well-educated, but argue that those problems shouldn’t preclude the women’s seeking justice. “They are not crazy people. They’re poor people, but they’re not crazy. There is no challenge to their mental competence,” plaintiffs’ attorney C. Jack Pearce says.

The original complaint in Campbell et al. vs. Kwon suggests that Kwon’s inappropriate behavior went beyond the way he conducted breast exams. Plaintiff Charlette Prue claims that when she was hospitalized at Greater Southeast Community Hospital, Kwon grabbed her from behind when she was standing in her room, fondled her breasts, and rubbed his body against hers. Prue further alleges that her roommate at the time witnessed the entire episode and proceeded to humiliate her by telling the story to anyone who would listen.

Wanda Denise Jenkins-Anderson, Kwon’s office manager for six years, gave an affidavit for the plaintiffs’ lawyers. In her statement, she said that at least one patient complained to her about Kwon’s behavior, saying he “examined my breasts no matter what I tell him is wrong.” She also stated that Kwon made unwanted sexual advances toward her in the office by trying to give her shoulder massages against her wishes, patting her on the behind, and asking her out to dinner. (Jenkins-Anderson is not a plaintiff in the case.)

Lottie Riley, Jenkins-Anderson’s sister, was deposed in the case. Jenkins-Anderson had arranged for Riley to see Kwon on two different occasions. In deposition, Riley says that not only did Kwon fondle her breasts, but that during pelvic exams he “finger-fucked” her. “It just felt like Dr. Kwon was playing with me,” Riley said in her deposition. She also said in a sworn affidavit, “I am convinced that Dr. Kwon was not interested in my health as much as he was with playing with my breasts or vagina for extended periods of time to get himself aroused.” Riley has not filed a case against Kwon.

Tazzara dismisses the women’s claims, pointing out that Judge Retchin has barred the most titillating allegations from being presented to the jury. Tazzara says Retchin has barred testimony from Riley and Jenkins-Anderson in all the cases because their allegations imply broader patterns of abuse, which the judge believes to be unfairly prejudicial to the defendant. And the plaintiffs’ lawyers admit that they have not been able to locate the hospital roommate who Prue alleged witnessed her assault, so they’ve dropped that part of the case. They say they’ve also dropped several of the original charges that suggested that Kwon failed to diagnose illnesses the women suffered from.

In fact, according to attorneys on both sides, after two years of litigation the only unresolved issue remaining in the six suits against Kwon is whether his 30-day breast-exam policy crossed a delicate, ethical line between clinical care and sexual assault. “Basically, they’re talking about the breast exam being outside the basic standard of care,” says Tazzara.

But the ethics of breast exams are a treacherous gray area in both law and medicine. The American Cancer Society guidelines on breast exams recommend a clinical examination once a year and monthly self-exams for all women. Beyond that, there’s no hard and fast rule to tell doctors or women when more frequent clinical exams would be considered too much or even how long such an exam should last.

Because of the difficulty in defining what is permissible and what is not in the course of a breast exam, large civil awards in cases of breast touching are rare. Attorney Michael S. Levy, a senior partner at D.C.’s Freer & McGarry who has been representing women in civil sexual assault cases for 15 years, explains that the plaintiffs’ only real strategy is to bring in a bunch of experts to testify on the length and frequency of an appropriate breast exam, which the defense will challenge with their own experts on the subject. As a result, Levy says, “I’ve never had a good case on a breast touching.”

In many of the cases against Kwon, a substantial amount of time elapsed between the alleged transgressions and when the women came forward, a point Kwon’s lawyers have raised in his defense. Shortly after the suits were filed, Kwon’s attorneys filed a motion to bar the women’s claims because they waited so long after the alleged events occurred to file suit, a request the judge rejected. But Kwon’s lawyers have challenged the women in deposition for continuing to see Kwon voluntarily even after the first incident of alleged sexual misconduct occurred.

Several women stated in complaints and in depositions that they believed they were trapped in Kwon’s practice because of insurance or Medicaid rules, and they argued that Kwon used this belief to force them to keep returning to see him in spite of their misgivings. Court documents show that plaintiff Joyce Wheeler was actually ordered by the city Medicaid office to remain in Kwon’s practice because of prior misuse of the system. Now in the late stages of AIDS, Wheeler also claims in her deposition that Kwon refused to refill her prescriptions unless she would submit to his breast exams.

Denise Snyder, executive director of the D.C. Rape Crisis Center, says it’s not all that uncommon for women—rich or poor—to be reluctant about coming forward with allegations of sexual assault, especially when the alleged perpetrator comes from a professional class held in high regard by society.

“There is an inherent power imbalance in a relationship like that that makes the woman feel that she’s not starting on equal footing,” says Snyder. “Doctors are definitely one of those professions that you’re taught not to question. Doctors know best. Sometimes it takes quite a bit before something slaps you across the face that something’s not right.”

The plaintiffs in the Kwon case present an even more complicated challenge, according to their attorneys. In a request for more discovery time, the women’s attorneys laid out some of the practical problems the case presents: “The defendant’s practice has focused on Medicaid patients. These patients tend to be difficult to find because of the fluidity associated with poverty and drug abuse. Even after finding them, the women have either been suspicious or distrusting of our motives, in one case desirous of being paid to participate, or felt embarrassed by the doctor’s actions and did not want anyone

to know.”

These cases would seem completely quixotic if Kwon had not already settled a similar case with a woman represented by D.C. criminal defense attorney Michelle Roberts. In August 1994, 31-year-old Debra Harrison filed a lawsuit alleging that “Kwon acted under the guise of having to perform a breast exam where it was not warranted and his only aim was to illicitly fondle plaintiff’s breasts without her permission....Defendant breached his duty of care to plaintiff by violating her trust that he would only examine her body as warranted by her physical condition.”

According to Harrison’s complaint, she saw Kwon on eight different occasions between November 1991 and June 1992, for everything from toothaches to vaginal infections. Harrison alleged that during each visit, Kwon would send the nurse out of the exam room and then spend 10 to 15 minutes fondling her breasts. A clinical social worker deposed as an expert witness in the case testified that Harrison suffered from post-traumatic stress disorder after being treated by Kwon.

Dr. Michelle Grant, head of emergency medical services at Howard University Hospital, was deposed as an expert witness in Harrison’s case. She testified that based on the American Cancer Society recommendations and Harrison’s medical records, only two out of eight breast exams were warranted.

“There isn’t clear documentation of why a breast exam needed to be done on a patient every two months,” Grant said. “I question what is the medical indication for this.”

Kwon’s attorneys filed a motion to bar Grant’s testimony, arguing that she could only comment on the ethical standards of the breast exam, not the clinical ones. “She was ultimately not able to state with reasonable medical certainty that a medical or clinical standard of care was violated,” wrote the defense. They further argued that Kwon was merely looking out for Harrison’s best interests: “A policy of more frequent breast exams may well represent a higher level of care being provided, since it is designed for more diligent monitoring which may allow earlier detection of breast cancer.”

But after having articulated a defense, Kwon settled the case in December. Harrison signed a confidentiality agreement barring her from disclosing the terms of the settlement. Tazzara would not discuss any specifics of the settlement, but she points out that most cases that come into Superior Court are settled out of court, and that it is not an indication of liability. “Taking a case to trial can cost 20, 30, 40,000 dollars,” says Tazzara. “Economics can be a reality [in deciding how to dispense with a case].”

Despite the settlement and the six pending civil cases against him, Kwon has a clean record with the D.C. Board of Medicine. The six women suing Kwon have not filed any complaints with law enforcement officials or with the board, and the board has not undertaken any independent investigation of his practice. Kwon’s license has been renewed repeatedly since 1980, and will likely be renewed again at the end of the year.

Several of the women interviewed for this story said they believed their lawsuit would put Kwon out of business. But malpractice attorneys are in the business of securing compensation for their clients, not shuttering doctors’ practices. They often use the threat of filing complaints with the medical board as leverage in settlement negotiations, and once a plaintiff agrees to settle, he or she is often explicitly prohibited from filing a complaint with the board against the doctor.

“At one point, the doctor will put up money to keep it from going one step further to the medical board,” says attorney Levy. “I’ve had cases where a doctor raped a client and they couldn’t go to the police [because of the settlement agreement].”

If the women are successful in reaching some kind of settlement with Kwon, it’s not likely to be a very large one. Several of the plaintiffs are unemployed, and because many already suffer from some emotional trauma, Levy estimates that they’ll get less than $10,000 apiece, and the lawyers will get a third of that amount. But right now, neither side seems interested in settling, so the surprisingly fine line between fondling women’s breasts and treating them may end up in front of a jury. CP

Art accompanying story in the printed newspaper is not available in this archive: Guion Wyler.

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