malpractice action must be licensed in that particular school.). The Code
does not speak of psychiatrists, however; it applies to any physician who
provides mental health services, and there is sufficient evidence from
which a jury could conclude that Dr. Bello fit chat definition. See
405 ILCS 5/2-102(a) (referring to "physician" who administers psychotropic
medications); 405 ILCS 5/1-120 (defining "physician" as any person
licensed by the state of Illinois to practice medicine in all its
branches"). Cf. 405 TLCS 5/1-121 (defining "psychiatrist"). However, to
the extent that physician testimony is required, "the testimony of the
defendant doctor may be sufficient to establish the standard of care.
Walski, 381 N.E.2d at 284.
Dr. Bello argues that, even if the Code applies to Ms. Threlkeld's
claims, there is no evidence to establish his liability. Section 5/2-1108
of the Code states that restraints may only be used when necessary to
prevent the patient from harming herself or others. Dr. Bello testified
that he never saw Ms. Threlkeld in restraints, but she testifies that she
was restrained. However, there is no evidence form which a jury could
reasonably conclude that Dr. Bello himself ordered the restraints. Ms.
Threlkeld argues that there is a question of fact here, because Dr. Bello
testified that he did not remember whether he ordered restraints.
However, Dr. Bello was asked twice at his deposition if he ordered
restraints for Ms. Threlkeld; both times he answered "no." Bello Dep. at
19, 32. When asked whether he ordered restraints for any patient that
night, he testified that he could not remember. Id. Whether he remembers
ordering restraints for any other patient has no bearing on his
unequivocal testimony that he did not order restraints for Ms.
Threlkeld. She may not create a question of fact by taking testimony out
of context, Taylor v. Monsanto Co., 150 F.3d 806, 810 (7th Cir. 1998), so
Dr. Bello is entitled to judgment as a matter of law on the unlawful
restraint claim. However, the Hospital does not argue that it is entitled
to judgment on this claim, and there is evidence from which a reasonable
jury could conclude that a Hospital employee restrained Ms. Threlkeld in
violation of section 5/2-108, so that claim stands.
A reasonable jury could also conclude on this record that Dr. Bello
ordered the administration of Ativan, a psychotropic drug, without
advising Ms. Threlkeld of the side effects and without honoring her
refusal in violation of sections 5/2-102 and -107(a) of the Code. Dr.
Bello argues that it is undisputed that the Ativan was needed, but by
Ms. Threlkeld's testimony she was calm except for when she was being
restrained. He also argues that the Ativan helped her and did not harm
her, but Ms. Threlkeld testified that she has suffered emotional distress
as a result of her experience at the Hospital. I cannot conclude as a
matter of law that she could not persuade a jury.
I GRANT summary judgment to the Officers on the unlawful detention
claim, and I GRANT it in part and DENY it in part as to the excessive
force claims. I Deny the Hospital's motion for summary judgment. I GRANT
Dr. Bello's motion in part with respect to the claim for unlawful
detention, but otherwise it is DENIED.