The Honorable William T. Lawrence, United States District



Judge for the Southern District of Indiana, is sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3719

ELISHA HUNTER, individually and as Personal

Representative of the Estate of Stanley Bell, deceased,

Plaintiff-Appellant,

v.

HETAL AMIN, M.D., et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:07-cv-00296-DRH-PMF—David R. Herndon, Chief Judge.

ARGUED MAY 5, 2009—DECIDED OCTOBER 1, 2009

Before RIPPLE and SYKES, Circuit Judges, and LAWRENCE,

District Judge.



LAWRENCE, District Judge. Elisha Hunter filed this

action on her own behalf and as personal representative
2 No. 08-3719

of the estate of her deceased brother, Stanley Bell, against

numerous defendants whom she alleged were liable

for Bell’s death in the St. Clair County, Illinois, jail. The

district court granted summary judgment in favor of all of

the defendants on all of Hunter’s claims; Hunter now

appeals portions of that ruling. For the reasons set forth

in this opinion, we affirm in part and reverse and

remand in part the judgment of the district court.

I. BACKGROUND

A. Facts

When Stanley Bell arrived at the St. Clair County, Illinois,

jail on April 13, 2005, as a federal pretrial detainee, he

was taking three prescription medications: amitriptyline,

an antidepressant that was prescribed as a sleep aid;

Prozac, an antidepressant; and hydroxyzine, an antihistamine that is used to treat anxiety. Because amitriptyline

was barred at the jail pursuant to an Illinois Department

of Corrections policy, Dr. Hetal Amin, a psychiatrist

who was under contract with the jail, was consulted by

jail personnel the day after Bell’s arrival regarding his

prescription for the drug. Dr. Amin prescribed a different sleep aid, trazodone, in place of amitriptyline.

On April 21, 2005, during his regular weekly visit to the

jail, Dr. Amin met with Bell to conduct a psychiatric

examination. Bell, who suffered from bipolar affective

disorder, became highly agitated and refused to talk

with Dr. Amin in the presence of a jail officer, insisting

that he was entitled to a private consultation with the

doctor. It was the jail’s policy—consistent with a state
No. 08-3719 3

regulation—that a correctional officer be present during

all inmate medical examinations. In the case of Bell,

Dr. Amin felt it was especially important for his own

safety to have an officer present because Bell’s file indicated that he had attacked an officer at another institution. A standoff ensued, with Bell growing increasingly

belligerent and refusing to participate in an examination

until the jail officer left the room and Dr. Amin refusing

to conduct the examination without the jail officer

being present.

Dr. Amin explained to Bell that his medications would

be discontinued unless he was able to conduct an examination; Bell still refused to submit to an exam in the

presence of a jail officer. Dr. Amin then determined that

Bell was refusing treatment and asked Bell to sign a

“Release of Responsibility” form so indicating. Bell

refused to sign the form, instead wadding it up and

throwing it. Dr. Amin believed that Bell was experiencing

a manic episode, which he attributed to the fact that

Bell was taking an antidepressant (Prozac) which can

cause manic episodes in individuals with bipolar disorders. Therefore, Dr. Amin decided that the best course of

action would be to discontinue Bell’s antidepressant, which

he believed would bring him down from his manic episode. Dr. Amin also suspected that Bell should be taking

a mood stabilizer, but he could not make that determination without conducting an examination. Because Bell

refused to consent to an examination, Dr. Amin discontinued all of Bell’s medications and planned to try to

examine him again the following week when he returned

to the jail. Unfortunately, Bell committed suicide on April

23, 2005, leaving behind a note that said, among other
4 No. 08-3719

The district court dismissed sua sponte Hunter’s claims 1

against the unnamed defendants; that ruling is not appealed.

Hunter does not appeal the district court’s ruling regarding 2

either her § 1983 claim against Dr. Amin or her medical malpractice claims against the County. 

things, that St. Clair County was responsible for his death

because it had taken away his medication.

B. Proceedings Below

Hunter’s complaint asserted a claim pursuant to 42

U.S.C. § 1983 against Dr. Amin, St. Clair County Sheriff

Mearl Justice, and St. Clair County, as well as two counts

of medical malpractice (one alleging loss of chance of

survival and the other alleging wrongful death) against

those defendants plus two unnamed employees of the

jail. The district court dismissed the medical malpractice

claims against Sheriff Justice early in the case; that

ruling has not been appealed. The defendants later

moved for summary judgment on the remaining claims;

those motions were granted in their entirety and the

district court entered judgment in favor of all of the

defendants.1

II. DISCUSSION

Hunter filed a timely appeal in which she addresses two

aspects of the district court’s ruling. First, she appeals 2

the court’s ruling that the County’s policy of requiring a

corrections officer to be present during psychiatric exami-
No. 08-3719 5

nations at the jail did not violate Bell’s constitutional

right to adequate mental health treatment. Second, she

appeals the court’s determination that, as a result of

Bell’s refusal of treatment, Dr. Amin had no duty toward

him and therefore cannot be liable for medical malpractice.

We review the district court’s grant of summary judgment de novo. Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate if “the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a

matter of law.” In ruling on a motion for summary judgment, the admissible evidence presented by the nonmoving party must be believed and all reasonable inferences must be drawn in the non-movant’s favor. Zerante v.

DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). However, “[a]

party who bears the burden of proof on a particular

issue may not rest on its pleadings, but must affirmatively

demonstrate, by specific factual allegations, that there is

a genuine issue of material fact that requires trial.”

Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th

Cir. 2007).

A. Section 1983 Claim Against the County

The district court found that the County’s policy of

requiring a corrections officer to be present during psychiatric examinations at the jail did not violate Bell’s constitutional right to adequate mental health treatment and

therefore granted summary judgment in favor of the
6 No. 08-3719

County on Hunter’s § 1983 claim. Hunter challenges

that finding.

“A municipality may be liable for harm to persons

incarcerated under its authority if it maintains a policy

that sanctions the maintenance of prison conditions that

infringe upon the constitutional rights of the prisoners.”

Estate of Novack ex rel. Turbin v. County of Wood, 226

F.3d 525, 530-31 (7th Cir. 2000) (citation and internal

quotation marks omitted). Municipal liability under § 1983

is appropriate only when the policy in question is the

“direct cause” or “moving force” behind a constitutional

violation. Id.

In this case, while there is no question that the jail had

an express policy that prevented Bell from speaking to

Dr. Amin without a jail officer being present, that policy

did not cause any violation of Bell’s constitutional rights.

Hunter correctly notes that the Illinois Rules of Civil

Procedure provide that physician-patient communications are, with certain enumerated exceptions, privileged

from disclosure in legal actions. See 735 ILCS 5/8-802. In

addition, the Illinois Mental Health and Developmental

Disabilities Confidentiality Act (“the Act”) provides that

communications between a patient and a psychiatrist

are confidential and may not be disclosed except under

certain circumstances. 740 ILCS 110/3(a). Clearly, however, neither of these statutes creates or suggests the

existence of a constitutional right of any kind. Both statutes, as well as the federal patient-therapist privilege

recognized in Jaffee v. Redmond, 518 U.S. 1 (1996), to

which Hunter also cites, govern the disclosure of patient-
No. 08-3719 7

This is an especially easy conclusion to reach given that the 3

purpose of the County’s policy is to protect medical providers

(continued...)

therapist communications after the fact, not the circumstances under which they are made.

Indeed, rather than supporting Hunter’s assertion that

Bell had a right to speak with Dr. Amin privately, the

Act recognizes that communications between a therapist

and a patient may take place in the presence of other

persons. See 740 ILCS 110/2 (defining “communication” as

including “any communication made by a recipient or

other person to a therapist or to or in the presence of

other persons during or in connection with providing

mental health or developmental disability services to a

recipient”). The Act then prohibits disclosure of such

communications by anyone, not just by the therapist. 740

ILCS 110/3 (“All records and communications shall be

confidential and shall not be disclosed except as

provided in this Act.”). In other words, under Illinois law

Bell’s communications with Dr. Amin were equally

privileged whether they took place in the presence of a

corrections officer or not.

As a pretrial detainee, Bell had a constitutional right to

adequate mental health treatment. Hunter points to no

evidence that suggests that Bell could not receive

adequate mental health treatment in the presence of a

corrections officer, and we find that he did not have

the right to an examination by Dr. Amin without the

corrections officer remaining in the room. Therefore, the 3
8 No. 08-3719

(...continued) 3

from being attacked by offenders and a “high degree of deference” is given “to the discretion of prison administration to

adopt policies and practices to maintain the safety and security

of this country’s penitentiaries.” Board v. Farnham, 394 F.3d 469,

477 (7th Cir. 2005) (citations and internal quotation marks

omitted). Indeed, the need for such a policy is supported by

the fact that it is mandated by an Illinois regulation that applies

to all county jails and provides: “When a physician or other

medical personnel attends patients at the facility, a jail officer

shall be present to maintain order, prevent theft of medication,

equipment or supplies, and to assure an orderly process.” 20

Ill. Adm. Code § 701.90(f)(2).

policy to which Hunter points did not violate Bell’s

constitutional rights and the district court correctly

found that there is no basis for holding the County

liable under § 1983.

B. Medical Malpractice Claims Against Dr. Amin

The district court granted summary judgment in favor

of the defendants on Hunter’s medical malpractice

claims. Hunter appeals that ruling only with regard to

Dr. Amin.

The district court, citing Curtis v. Jaskey, 759 N.E.2d 962,

967 (Ill. App. Ct. 2001), ruled that 

the physician-patient relationship creates a duty for

the physician to provide competent medical care to

the patient. A medical malpractice action is predicated

on such a duty. However, where the patient expressly

refuses to consent to a medical procedure, no duty
No. 08-3719 9

arises on behalf of the physician to perform the procedure. Ergo, the physician cannot be held liable

for failing to perform the duty.

That is a correct statement of Illinois law and supports

a finding that Dr. Amin cannot be held liable for failing

to conduct an examination of Bell, inasmuch as the

record is quite clear that Bell refused to consent to the

examination offered by Dr. Amin because of the

presence of the jail officer.

The problem is that Hunter’s malpractice claim against

Dr. Amin is not based solely on the fact that Dr. Amin

did not conduct an examination of Bell. Rather, both

Hunter’s complaint and her brief in opposition to

Dr. Amin’s motion for summary judgment make clear

that she also alleges that Dr. Amin committed malpractice

by discontinuing Bell’s medication. Dr. Amin argues

that he had no choice but to do so because Bell had

refused treatment. The fact is, however, that Bell did not

refuse to continue his medication; rather, he refused to

submit to a psychiatric examination by Dr. Amin. There

is no evidence to support Dr. Amin’s bare assertion that

it was necessary for Bell to be examined by him in order

for his previously-prescribed medication to be continued; indeed, Dr. Amin offers no explanation of why

that would be the case. The assertion is belied by the fact

that Bell had been at the jail for over a week before

Dr. Amin’s attempt to examine him and had been taking

his medication during that time. The fact that Dr. Amin

attempted to examine Bell on that particular day had

nothing to do with Bell himself; it was simply the day

that Dr. Amin was scheduled to see patients at the jail.
10 No. 08-3719

Further, a week earlier Dr. Amin had changed Bell’s

prescribed sleep aid from amitriptyline to trazodone,

demonstrating that he could and did make decisions

regarding Bell’s medications without examining him.

The decision to discontinue Bell’s medication was

another such decision.

Dr. Amin’s deposition testimony is that he believed

that Bell was experiencing a manic episode that was

caused by the antidepressant he was taking. Therefore, he

decided to discontinue Bell’s antidepressant, which he

believed would bring him down from his manic episode

and allow him to conduct a psychiatric examination on

his next visit. That was a treatment decision to which a

duty attached. Whether the other elements of a medical

malpractice claim—violation of the standard of care and

proximate cause—also are present in this case remains be

seen, as those issues were not raised in the district court.

C. Jurisdiction

There is one final issue that merits a brief discussion. We

clearly have jurisdiction over this appeal, inasmuch as

it includes a 42 U.S.C. § 1983 claim. However, it is not

clear whether jurisdiction over Hunter’s malpractice

claim is dependent on the supplemental jurisdiction

statute, 28 U.S.C. § 1367, or whether diversity jurisdiction

is present. Hunter asserts the latter; however, neither

Hunter’s complaint nor her jurisdictional statement sets

forth the states of citizenship of the individual parties,

but rather indicates only where they reside. “[R]esidence

and citizenship are not synonyms and it is the latter
No. 08-3719 11

that matters for purposes of diversity jurisdiction.”

Meyerson v. Harrah’s East Chicago Casino, 299 F.3d 616,

617 (7th Cir. 2002). In addition, Hunter sues both individually and as the personal representative of Bell’s estate,

and “the federal diversity statute treats ‘the legal representative’ of a decedent’s estate (or the estate of an

infant or an incompetent) as a citizen of the same state

as the decedent.” Gustafson v. zumBrunnen, 546 F.3d 398,

400-01 (7th Cir. 2008) (citing 28 U.S.C. § 1332(c)(2)).

No mention of Bell’s state of citizenship at the time of

his death is contained in the record, although Hunter’s

counsel suggested at oral argument that he was a citizen

of Missouri. Because only state law claims now remain

in this case, the district court should determine on

remand whether the requirements for diversity jurisdiction are satisfied. If they are not, the court should

then determine whether it is appropriate to continue

to exercise supplemental jurisdiction over Hunter’s

malpractice claims. See Leister v. Dovetail, Inc., 546 F.3d

875, 882 (7th Cir. 2008) (“When the federal claim in a

case drops out before trial, the presumption is that the

district judge will relinquish jurisdiction over any supplemental claim to the state courts.”).

Conclusion

For the reasons set forth above, the judgment of the

district court is affirmed with regard to Hunter’s § 1983

claim against the County. With regard to Hunter’s medical

malpractice claims against Dr. Amin, the grant of sum-
12 No. 08-3719

mary judgment is reversed and remanded for further

proceedings consistent with this opinion.

AFFIRMED in part and REVERSED and

REMANDED in part.

SYKES, Circuit Judge, dissenting. I agree with my colleagues that summary judgment for St. Clair County on

Hunter’s § 1983 claim was appropriate. I disagree, however, with the majority’s decision to reinstate

Hunter’s medical-malpractice claim against Dr. Amin.

The district court properly entered summary judgment

against Hunter on that claim as well, and I would

affirm the judgment in its entirety.

Under Illinois law “[t]he duty of a physician to render

competent medical care arises as a consequence of the

physician-patient relationship.” Curtis v. Jaskey, 759 N.E.2d

962, 968 (Ill. App. Ct. 2001). A physician must have the

patient’s consent before rendering treatment. “Absent

consent, whether express or implied, a physician has no

right to render medical treatment to a patient.” Id. The

Illinois Supreme Court has emphasized that “a patient

normally must consent to medical treatment of any kind.”

Keiner v. Cmty. Convalescent Ctr. (In re Estate of Longeway),

549 N.E.2d 292, 297 (Ill. 1989) (emphasis added). And

“because a physician must obtain consent from a

patient prior to initiating medical treatment, . . . the
No. 08-3719 13

patient has a common law right to withhold consent and

thus refuse treatment.” Id. This “incorporates all types

of medical treatment, including life-saving or life-sustaining procedures.” Id. Accordingly, where a patient refuses

consent to treatment, Illinois holds that no duty to

render competent treatment arises and no action for

medical malpractice may be maintained. See Curtis, 759

N.E.2d at 968 (“Where a patient refuses to consent to

a medical procedure, no duty arises on behalf of a physician to perform that procedure such that the physician

can be held liable for failing to perform it.”).

My colleagues conclude that although these principles preclude liability predicated on Dr. Amin’s failed

attempt to conduct a psychiatric examination of Bell,

the doctor nonetheless may be held liable for discontinuing Bell’s medication. I disagree. As the foregoing

authorities make clear, a physician’s right to render

medical treatment—and therefore his duty to render

competent treatment—arises when a physician-patient

relationship is established and depends upon the patient’s

consent. Prescribing medication is a form of medical

treatment. Here, a physician-patient relationship was not

established and therefore a right to treat did not arise

because Bell refused to consent to the psychiatric examination that was a necessary predicate to Dr. Amin’s

treatment decisions—including the decision to prescribe

medication for the treatment of Bell’s then-extant psychiatric condition. Because Bell refused to consent to the

examination, Dr. Amin had no right to render treatment—no right, that is, to prescribe medication. As such,

there is no duty and therefore no basis for a medicalmalpractice action.
14 No. 08-3719

To be more specific, the undisputed facts are as follows:

Bell was booked into the St. Clair County Jail a week

before Dr. Amin’s failed attempt to examine him. When

he arrived, he was taking certain prescriptions for

bipolar disorder. One was Prozac, an antidepressant;

another was Elavil (amitriptyline), sometimes prescribed

as a sleep aid. Elavil was classified as a “concern medication” under Illinois Department of Corrections policy, and

the department did not permit its use in Illinois correctional facilities. Accordingly, Dr. Amin substituted an

alternative sleep aid—trazodone—and scheduled Bell

for an examination the following week during his

regular visit to the jail.

As my colleagues explain, at that appointment Bell

became agitated at the presence of a correctional officer.

He was told that the officer was required to remain in

the room during the examination, and at this his

agitation increased. Dr. Amin made a tentative judgment

based on Bell’s behavior that he was suffering a manic

episode and needed a different mix of psychotropic

medications. The doctor testified in his deposition that

Prozac can cause mania in patients with bipolar disorder

and he thought Bell should stop taking it; he also

suspected Bell needed a mood stabilizer. But the doctor

needed to conduct a full psychiatric examination before

prescribing medications.

Dr. Amin tried to explain to Bell that he needed to

conduct the examination in order to prescribe medication

and that Bell’s medication would be discontinued if he

refused to be examined. This only angered Bell more
No. 08-3719 15

and he ultimately refused to be examined. He was given

a “Release of Responsibility” form, which he crumpled

up and threw away. Dr. Amin planned to attempt

another exam the following week. But based on Bell’s

refusal to consent to the psychiatric examination, his

prior medications were discontinued and no new ones

were prescribed. Bell committed suicide before his next

appointment with Dr. Amin.

My colleagues have concluded that the discontinuation

of Bell’s prior medications is separately actionable even

though the failed psychiatric examination is not.

They base this conclusion on a subsidiary one: that the

psychiatric examination was not necessary for Dr. Amin

to continue to prescribe the medications Bell was taking

when he entered the jail. Maj. op. at 9. There is no

support for this in the record. Drug-prescription decisions

are medical decisions, and Hunter presented no expert

medical evidence to contradict Dr. Amin’s testimony

that he needed a current psychiatric examination

before prescribing medications.

My colleagues point to the fact that when Bell first

arrived at the jail, Dr. Amin substituted trazodone for

amitriptyline, Bell’s previously prescribed sleep aid, and

that he made this decision without examining Bell.

This does not establish that the psychiatric exam was

unnecessary to Dr. Amin’s prescription decisions at the

time he first attempted to examine Bell. It is undisputed

that Dr. Amin made the drug substitution upon Bell’s

admission to the jail because state regulations prohibited the use of amitriptyline. That Bell was continued
16 No. 08-3719

on this substitute sleep aid and his other medications

during his first week in the jail—before he saw Dr. Amin—

does not establish that a psychiatric examination was

unnecessary to the treatment decisions Dr. Amin needed

to make when he first saw Bell a week later. At the time

of his admission into the jail, Bell had not yet seen

Dr. Amin or refused the psychiatric examination, and

his continued receipt of his prior prescription medications during this interim period falls within Illinois’

doctrine of implied consent. Curtis, 759 N.E.2d at 967-68

(consent is implied based on an existing emergency or

other circumstances under which the patient’s actual

consent cannot be obtained).

But when actual consent to treat has been sought and

refused, this doctrine falls away and the doctor has no

right to treat. Id. at 968. Once Bell refused to consent to

the psychiatric examination, Dr. Amin lacked the right

to render treatment. This meant he had no right to prescribe medications—either those Bell had been taking or

new medications. Because of Bell’s refusal, no physicianpatient relationship was established and no right or duty

to treat arose. Therefore, there is no basis for medicalmalpractice liability. The district court properly entered

summary judgment for Dr. Amin. Accordingly, I must

respectfully dissent.

10-1-09