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, 583 F.3d 486

LAWRENCE, District Judge. Elisha Hunter filed this action on her own behalf and as personal representative 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 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 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. II. DISCUSSION Hunter filed a timely appeal in which she addresses two aspects of the district court’s ruling. First, she appeals the court’s ruling 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. 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 non-moving 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 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, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), to which Hunter also cites, govern the disclosure of patient-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 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, 326 Ill.App.3d 90, 259 Ill.Dec. 901, 759 N.E.2d 962, 967 (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 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. 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. “[Rjesidence and citizenship are not synonyms and it is the latter 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

summary judgment is reversed and remanded for further proceedings consistent with this opinion. Affirmed in part and Reversed and Remanded in part. . The district court dismissed sua sponte Hunter’s claims against the unnamed defendants; that ruling is not appealed. . Hunter does not appeal the district court's ruling regarding either her § 1983 claim against Dr. Amin or her medical malpractice claims against the County. .

This is an especially easy conclusion to reach given that the purpose of the County’s policy is to protect medical providers 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).