SAN JOSE
– Could five different women have mistaken routine pelvic exam
procedures for sexual activity?
SAN JOSE – Could five different women have mistaken routine pelvic exam procedures for sexual activity?
They could if their genitalia were extra-sensitive at the time, Gilroy Doctor Raul Ixtlahuac’s attorney, Doron Weinberg, argued in county superior court Wednesday.
Helped by an expert defense witness, Weinberg may have cast some doubt in jurors’ minds as to the accuracy of what the women say they felt. However how much doubt is unknown, since Weinberg stopped short of directly asking his expert whether “heightened sensitivity” might cause a woman to mistake a doctor’s fingers or gynecological tool for a penis.
Ixtlahuac (ISHT-la-wok), 42, faces four counts of unlawful sexual penetration and one count of sexual battery. Four women say they felt Ixtlahuac have sexual intercourse with them during pelvic exams as they lay with their feet up in stirrups and their view obscured by a drape. One woman claims Ixtlahuac touched her clitoris sexually during such an exam. If convicted, Ixtlahuac could face more then a decade in prison and lose his medical license. If acquitted, he could return to family practice.
Ixtlahuac was tried before for these charges – plus one that was dropped – in February and March, but that jury could not reach a unanimous verdict.
Weinberg noted reasons why at least three of the women, all accusing Ixtlahuac of intercourse, might have been hypersensitive during the particular visit in question. One had an infection that caused vaginal swelling, according to Ixtlahuac’s diagnosis at the time. Another was recovering from a severe allergic reaction to latex an hour or two before. A third was in late-term pregnancy, which engorged her genital area.
Dr. Risa Kagan, a practicing obstetrician/gynecologist in Berkeley and an OB/GYN professor at the University of California at San Francisco, was Weinberg’s expert witness. From professional and personal experience (Kagan has had two children herself), she told jurors that vaginal inflammation, late-term pregnancy or even nervousness can easily make a pelvic examination with fingers or speculum feel “different” than they normally would.
Different how? Kagan said most women would feel pain under the circumstances. Some women have said a speculum felt like a knife blade, Kagan said, and one of her patients complained that two fingers examining her vagina “felt like a fist.”
But Ixtlahuac’s accusers say they felt sex – a penis rather than a knife or fist. Both Weinberg and prosecution attorney Chuck Gillingham notably neglected to ask Kagan whether a speculum or fingers might feel sexual, like a penis, under the given circumstances. Asked about this afterward, Gillingham smiled and said the judge has prohibited the lawyers from commenting to the press on witnesses’ testimony.
As a general comment, Gillingham said Ixtlahuac’s accusers “are not mistaken. They’re not confused. They didn’t make anything up.”
Weinberg, however, said during a recess that Kagan’s testimony shows the prosecution’s argument “won’t work.”
While cross-examining Kagan, Gillingham asked if a doctor could inadvertently touch a patient’s clitoris during a pelvic exam. Kagan said it is possible and that she believes she has done so herself. A doctor would normally apologize after such a mistake if he or she knew about it, Kagan said, but added, “I would say to you that most women do not tell their doctor they’ve been touched. This is a very intimate thing.”
Kagan said she has testified as an expert witness in more than 30 court cases, given “well over 50” academic presentations and had 10 to 15 articles published by journals in her field. She teaches medical students and residents how to do pelvic exams and said she thinks she has done “well over tens of thousands” herself.
Weinberg is also trying to prove that Ixtlahuac is too short to have inserted his penis in any patient’s vagina on the exam table. The tables in the Kaiser Permanente clinic were 33 inches from the ground, Weinberg said, and Kagan added that a woman’s vagina is usually no less than 4 inches above that. According to Weinberg, Ixtlahuac’s penis is 34 inches from the ground. Since women’s vaginal cavities usually incline downward, penetration would have to be from above – impossible for Ixtlahuac, Weinberg says.
Ixtlahuac, who began his testimony Tuesday, took the stand for about three hours Wednesday. While he appeared confident at first, he looked drained by the end – although at one point that afternoon he said he felt “OK.” His wife, mother, nephew, brother and sister-in-law were present in his support and spoke with him quietly during recesses.
Weinberg first had Ixtlahuac demonstrate his standard pelvic exam procedures – wearing his lab coat and latex gloves – on a dummy on an exam table identical to those at Kaiser.
One of Ixtlahuac’s accusers had said that after the suspected intercourse, the doctor turned his back to her and did something with his hands at waist level that made the sides of his lab coat flap. The implication, though unstated, was that he was closing his zipper. During the demonstration, Ixtlahuac explained that after an exam he usually has to turn to a tray behind him to gather and label slides bearing the patient’s tissue samples, which he then examines under a microscope himself or sends to a lab.
After the demonstration, Weinberg began reviewing each of the five questionable examinations with his client, using patient medical charts Ixtlahuac wrote for each at the time. He got part-way through the fourth when time came for the day’s recess. His testimony was expected to continue this morning.
On the stand, Ixtlahuac again denied the crimes he is accused of.
Testimony is expected to conclude today, according to Judge James Emerson. Closing arguments are expected Monday, and then the outcome will be up to the jury of eight women and four men.
Among the defense witnesses this week was one of Ixtlahuac’s female patients, who said he was a good doctor.
