                                       2019 IL App (5th) 170446
            NOTICE
 Decision filed 04/23/19. The
 text of this decision may be                NO. 5-17-0446
 changed or corrected prior to
 the filing of a Peti ion for
 Rehearing or the disposition of
                                               IN THE
 the same.
                                   APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
______________________________________________________________________________

ANITA IRVIN,                                    )     Appeal from the
                                                )     Circuit Court of
       Plaintiff-Appellant,                     )     Jackson County.
                                                )
v.                                              )     No. 15-L-74
                                                )
SOUTHERN ILLINOIS HEALTHCARE,                   )
d/b/a Carbondale Memorial Hospital;             )
THE CITY OF CARBONDALE; THE CITY OF             )
CARBONDALE POLICE DEPARTMENT; and               )
OFFICER MARK MURRAY,                            )
                                                )
       Defendants                               )
                                                )     Honorable
(Southern Illinois Healthcare, d/b/a Carbondale )     Christy W. Solverson,
Memorial Hospital, Defendant-Appellee).         )     Judge, presiding.
______________________________________________________________________________

         JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
         Justices Welch and Cates concurred in the judgment and opinion.

                                          OPINION

¶1       At issue in this appeal is what steps a health care provider may take if it has reason to

believe that a patient may be suicidal. The plaintiff, Anita Irvin, sought treatment for swelling

and pain in her leg at the emergency room of a hospital operated by the defendant, Southern

Illinois Healthcare. At some point, her primary care physician informed the attending emergency

room physician that the plaintiff recently made suicidal ideations. Emergency room personnel

prevented the plaintiff from leaving the hospital. When and if the plaintiff was asked to speak to

a mental health counselor is in dispute. Emergency room personnel also required the plaintiff to
                                                 1
change into a paper hospital gown, turn over her purse, and provide blood and urine samples

before a counselor could be called to evaluate her. The plaintiff subsequently filed a complaint

for false imprisonment. The court granted summary judgment in favor of the defendant. The

plaintiff appeals, arguing that summary judgment was inappropriate because there were genuine

issues of material fact concerning the lawfulness of her detention. We hold that a health care

provider must comply with the requirements of the Mental Health and Developmental

Disabilities Code (Mental Health Code) (405 ILCS 5/1-100 et seq. (West 2014)). Because we

agree with the plaintiff that there are genuine issues of material fact related to whether the

defendant did so, we reverse.

¶2                                      I. BACKGROUND

¶3     The events at issue took place in August of 2014. At the time, the plaintiff’s primary care

doctor was Dr. Jeffrey Parks. Among other things, he was treating her for pain and swelling in

her right leg, which had been an ongoing problem for seven years. The plaintiff saw Dr. Parks

for this problem on August 12. According to one of Dr. Parks’ nurses, Leah Hutton, as the

plaintiff was leaving the office, she said that she was so tired of dealing with the pain and

swelling in her leg that she “felt like slitting her wrists.” Hutton left a message for Dr. Parks,

informing him of the plaintiff’s comment. According to Dr. Parks, he saw Hutton’s message the

following morning. He followed up with the plaintiff by urging her to seek counseling, which

she refused to do. He also discussed the matter with the plaintiff’s husband, who assured him that

his wife was not suicidal. Dr. Parks did not take any of the steps available under the Mental

Health Code to have the plaintiff involuntarily committed or detained for a mental health

evaluation. See id. §§ 3-601, 3-602, 3-603, 3-605.

¶4     Two days later, on August 15, 2014, the plaintiff called Dr. Parks’s office, again

complaining of pain and swelling in her leg. He suggested that she go to the emergency room at
                                                2
Carbondale Memorial Hospital, which is operated by the defendant. He also told her that he

would schedule an MRI. Dr. Parks did not intend to schedule the MRI that day, during the

plaintiff’s emergency room visit; however, that is what she believed he meant. Dr. Parks told the

plaintiff to ask for Dr. Haake.

¶5     The plaintiff drove herself to the emergency room at Carbondale Memorial Hospital. Her

husband, Ted Irvin, met her there. Although the precise sequence of events is in dispute, the

following facts are not. The plaintiff arrived at the emergency room sometime between 2 and 3

p.m. She indicated that her chief complaint was pain and swelling in her leg. She asked for Dr.

Haake, but she was seen by Dr. John Bollig. Ted Irvin left to go to work sometime between 5

and 6 p.m. There is no indication in the record that Dr. Bollig or any of the nurses treating the

plaintiff were aware of the plaintiff’s earlier statement to Dr. Parks prior to Ted’s departure, and

there is no indication that the plaintiff engaged in any behavior that led them to believe that a

mental health evaluation was necessary.

¶6     The plaintiff walked out of the hospital sometime between 7 and 7:20 p.m. She was not

given discharge papers. She was approached in the parking lot by a nurse, who told her she could

not leave. When the plaintiff refused to accompany the nurse back into the hospital, the nurse

called security. At some point, the police were also called. The plaintiff walked back into the

hospital with the two security guards and the nurse at about the same time the police arrived.

¶7     The plaintiff was then detained in an exam room by two security guards, a nurse, and

three police officers. According to the defendant, the plaintiff was told that she was being

detained for a mental health evaluation before she walked out of the hospital. According to the

plaintiff, she was never told why she was not allowed to leave.

¶8     It is undisputed that while the plaintiff was detained in the exam room, she was required

to get undressed, put on a paper hospital gown, provide blood and urine samples, and turn over
                                                 3
her purse to the security guards before emergency room personnel would even request that a

mental health counselor come to the room to evaluate her. The plaintiff refused to do so. She sat

on her purse so it could not be taken from her. This led to a struggle for possession of the purse

involving the plaintiff, one of the police officers, and one of the security guards. Although the

plaintiff denies biting the police officer during this struggle, she was subsequently convicted on

one count of battery for doing so. The officer managed to take the plaintiff’s purse from her. The

plaintiff was then shackled to the bed until she was transported to jail on the battery charge. We

note that although she had to be medically cleared before she could be taken to jail, once she was

shackled to the bed, no further medical or psychiatric evaluation took place.

¶9     On August 14, 2015, the plaintiff filed a four-count complaint against the City of

Carbondale, the Carbondale Police Department, the defendant, and Officer Mark Murray. She

alleged that she was forcibly detained by the defendant’s security guards without lawful

justification. She further alleged that Officer Murray removed her purse at the direction of

hospital staff. She alleged that, in doing so, Officer Murray forced her head between her knees,

which exacerbated neck pain she was experiencing due to a recent surgery. (We note that, at the

plaintiff’s bench trial on the battery charge, security guard Albert Keown denied that anyone

pushed the plaintiff’s head down during the struggle over her purse, but Officer Murray testified

that he believed one of the security guards did so. The plaintiff testified that one of the officers

pushed her head down.) The plaintiff further alleged that she experienced significant emotional

distress as a result of the incident. She asserted claims of aggravated battery and intentional

infliction of emotional distress against all four defendants, a claim of false imprisonment against

Southern Illinois Healthcare, and a claim of false arrest or false imprisonment against the other

three defendants. The court granted motions to dismiss three of the four claims. The only claim

remaining is the false imprisonment claim against the defendant, Southern Illinois Healthcare.
                                                 4
¶ 10   On June 14, 2017, the defendant filed a motion for summary judgment on the remaining

claim. It argued that the plaintiff could not prove that her detention was unlawful or

unreasonable, one of the elements necessary to support a claim of false imprisonment. The

defendant asserted that hospital staff had knowledge of statements of “suicidal ideation and self

mutilation” made by the plaintiff. It argued that her “brief detention” was therefore “reasonable

to allow a mental health counselor to perform an evaluation to determine whether the plaintiff

was subject to involuntary commitment or could be released for follow-up outpatient care and

treatment.” Attached to the motion were the discovery depositions of the plaintiff and Dr. Parks,

a transcript of the plaintiff’s bench trial on the battery charge, and a patient information record

from her emergency room visit.

¶ 11   In his deposition, Dr. Parks testified that he was the plaintiff’s primary care doctor from

1999 until 2014, when the incident at issue took place. He testified that the plaintiff’s health

problems included high blood pressure and back pain, in addition to the pain and swelling in her

right leg. He explained that the pain and swelling in the plaintiff’s leg began in 2007, after she

fell while skating. The fall left her with a sore above her knee that did not heal properly and

chronic pain in the leg. He also testified that at some point, the plaintiff was prescribed an

antidepressant, although he did not know whether she was taking it in the summer of 2014.

¶ 12   Dr. Parks relied on a section of the plaintiff’s medical records called “Nurses’ Notes” for

most of his testimony concerning the events at issue. He explained that the Nurses’ Notes section

was used to document phone calls and that it could be used by any of the medical providers in

his office, not just the nurses. He testified that he saw the plaintiff in his office for leg pain on

August 12, 2014, three days before the incident at the defendant’s emergency room. He then

testified about the Nurses’ Notes entries for the following day, August 13. He noted that he

received a message from a nurse, Leah Hutton, that when the plaintiff was leaving after her
                                                 5
appointment the previous day, she told Hutton that “she was about ready to give up, that she felt

like slitting her wrists.” Dr. Parks responded by leaving a message with another nurse, Katherine

Lively. He told Lively to call the plaintiff to “check on her” and to “offer intervention if she is

suicidal.”

¶ 13   Dr. Parks next testified as follows:

       “I have another entry from August the 13, 2014, from Katherine Lively. She says,

       ‘Patient stated that she is serious as far as her threats and she is just tired of living this

       way. Encouraged the patient to go to the local ER for evaluation, and the patient is

       refusing. Also stated that she had read online about how she can cut herself to release

       fluid and is thinking that she may do that this weekend because she has no other

       option.’ ”

Dr. Parks testified that he made another entry indicating that he called both the plaintiff and her

husband. He, too, urged the plaintiff to go to the emergency room, but she refused.

¶ 14   Dr. Parks described one more Nurses’ Notes entry from August 13, 2014. The entry

indicated that at 2:16 p.m., the plaintiff’s husband came to the office to pick up some paperwork

for the plaintiff. He informed Dr. Parks that he had checked on his wife. She was irritable but did

not intend to harm herself.

¶ 15   As stated previously, the plaintiff was detained by personnel at the defendant’s

emergency room two days later, on August 15, 2014. Dr. Parks again relied on the Nurses’ Notes

section to testify about the events of that day. An entry at 11:29 a.m. indicated that Dr. Parks

received a call from Ted Irvin, informing him that the plaintiff wanted him to order a device she

had seen online that could “suck the fluid out of her leg.” Dr. Parks “strongly advised against

that” and “warned of the possibility of infection and failure.” He suggested that the plaintiff


                                                 6
instead go to the emergency room. He also suggested that the plaintiff undergo an MRI of her leg

“to check for areas of infection or fluid that could be aspirated by the interventional radiologist.”

¶ 16   A second entry, at 1:37 p.m., indicates that the plaintiff called Dr. Parks and told him that

she would go to the emergency room as he suggested. Dr. Parks noted, “I called to report to Dr.

Haake. I also advised [the plaintiff] to have an MRI of the right upper and lower leg, the right

knee. I will ask the nurse to schedule this.”

¶ 17   Dr. Parks then described a third Nurses’ Notes entry from 8:36 p.m. on August 15, 2014.

That entry documented his telephone conversations with the plaintiff and emergency room

doctor John Bollig. It indicated that the plaintiff called Dr. Parks at 5 p.m. and told him that she

was frustrated because the emergency room doctor was not helping her. She asked Dr. Parks to

call the emergency room doctor. Dr. Parks testified that he called Dr. Bollig and gave him a

history of the pain and swelling in the plaintiff’s leg as well as “her suicidal ideation.” Dr. Parks

stated that the plaintiff called him again between 7 and 7:30 p.m., asking him to tell the

emergency room doctor to release her. When he told her he could not do so, the plaintiff hung

up. Dr. Parks then called Dr. Bollig, who told him that “he had confronted [the plaintiff] about

her suicidal ideation and she would not confirm that she did not intend to hurt herself.”

¶ 18   On cross-examination, Dr. Parks acknowledged that on August 13 and 14, he did not

believe that the plaintiff’s mental state was serious enough that he needed to call the police or

anyone else to intervene. He did not recall whether he told Dr. Bollig that the plaintiff’s husband

had assured him on August 13 that his wife was not suicidal. We note that Dr. Parks was not

asked what, if anything, he said to Dr. Haake. Dr. Parks was also not asked whether he told Dr.

Bollig that he learned of the plaintiff’s comment two days earlier and did not believe it was

necessary to take any steps to intervene on an emergency basis during those two days.


                                                  7
¶ 19    In her deposition, the plaintiff testified that on the afternoon of August 15, 2014, Dr.

Parks called her at work about her leg. He directed her to go to the emergency room and ask to

see Dr. Haake, and he told her that he wanted her to have an MRI of her leg. The plaintiff

understood this to mean that the MRI would be performed that day at the hospital. She did not

know why Dr. Parks sent her to the emergency room rather than the imaging department, but she

thought that it might have been because the imaging department would be closed by the time she

arrived. The plaintiff testified that she also thought that she would be given antibiotics

intravenously, but she did not explain the basis for this assumption.

¶ 20    The plaintiff testified that when she arrived at the defendant’s emergency room, she

registered, went to an exam room, and put on a hospital gown. A nurse came into the exam room

and took the plaintiff’s vital signs. Dr. Bollig then came in and examined the plaintiff’s leg. The

plaintiff testified that she told Dr. Bollig that Dr. Parks had instructed her to ask for Dr. Haake

“because they were probably going to do an MRI.” According to the plaintiff, Dr. Bollig laughed

at this. He told her that he had not spoken with Dr. Parks and that there was nothing he could do

for her leg.

¶ 21    The plaintiff testified that Dr. Bollig left the exam room, but later came back. At this

point, the plaintiff explained, she told Dr. Bollig that she knew that the fluid in her leg needed to

be drained because she had “been through this before.” According to the plaintiff, she told him

that during a previous hospital visit, something called a “JP drain” was put in her leg. She also

told him that that she was sent home with the device. The plaintiff then stated, “And he took that

to mean that I was going to put a drain in myself. Well, no, of course not.”

¶ 22    According to the plaintiff, Dr. Bollig again told her that there was nothing that could be

done for her leg in the emergency department. He told her to follow up with her family doctor,

and he left the exam room. The plaintiff testified that no one came into the room to tell her she
                                                 8
could leave. Eventually, a nurse came in. The plaintiff asked if she could get dressed. The nurse,

who was not the same nurse who attended to the plaintiff earlier, told the plaintiff that she

believed so. The plaintiff got dressed and went to the registration area. She testified that when

she asked if there was anything else she needed to sign, she was told that there was not. The

plaintiff then left the hospital. She acknowledged that she was never given discharge papers.

¶ 23    The plaintiff testified that when she walked out of the hospital, she had been in the

emergency room for four hours. She stated that during those four hours, none of the hospital staff

indicated to her that there was any concern about her mental health.

¶ 24    The plaintiff further testified that immediately after she walked out, a nurse came

“chasing” after her in the parking lot to tell her that she could not leave the hospital. The plaintiff

told the nurse that she wanted to get home so she could get off her leg, which was hurting badly

by this point. She also needed to get home to take care of a sick pet. She told the nurse that she

was going home and continued to walk towards her car. The plaintiff testified that the nurse then

called security. According to the plaintiff, neither the nurse nor the security guard would tell her

why she was not allowed to leave. She admitted that she was likely rude to the security guard

who confronted her in the parking lot, but she denied cursing at him. She explained that she was

very upset at this point.

¶ 25    The plaintiff testified that she was escorted back to an exam room in the emergency

department. A nurse, two security guards, and three police officers stayed in the room with her.

She testified that they “were making fun of her.” She further testified that she was told that she

had to change back into a paper hospital gown, give the security guard her purse, and speak with

a doctor. According to the plaintiff, however, no one would tell her why she had to speak with a

doctor, and no doctor ever showed up.


                                                  9
¶ 26    The plaintiff’s testimony at her trial for battery was consistent with her deposition

testimony, but she provided a few additional details. She testified that she arrived at the

emergency room “a little before 3:00” in the afternoon, and that her husband later met her there.

She noted that she put on a hospital gown when she went into the exam room, but was allowed to

keep her purse with her. She testified that she was at the emergency room for four hours. She did

not make any comments about suicide to any of the hospital personnel who she saw during this

time.

¶ 27    The plaintiff further testified that when hospital staff prevented her from leaving, she

asked why she was being detained, but no one would tell her. She noted that her husband had

gone back to work by this time. The plaintiff admitted that she “was getting pretty agitated.” She

also acknowledged that she attempted to hold onto her purse when the security guard and police

officer attempted to take it from her. The plaintiff denied biting the police officer during that

struggle. She emphasized that she did not see a doctor or receive any further medical care after

she was prevented from leaving the hospital.

¶ 28    Ted Irvin testified at the plaintiff’s battery trial that the plaintiff called to tell him that she

was on her way to Carbondale Memorial Hospital with leg pain. He drove to the hospital to meet

her there. He testified that he met the plaintiff in the emergency department waiting room and

then went into the exam room with her. Irvin stated that he did not hear the plaintiff say anything

to any hospital personnel about wanting to kill herself. He acknowledged, however, that he left to

go to work while the plaintiff was still there. He estimated that he left at 5 or 5:30 p.m. He

explained that he worked evenings as a medical courier. Irvin testified that the plaintiff was in

pain but was fine emotionally.

¶ 29    One of the two security guards involved in detaining the plaintiff and one of the three

Carbondale police officers who responded also testified at the plaintiff’s battery trial. Albert
                                                   10
Keown, the security guard, testified that he and another security guard responded to a request for

assistance with a potentially suicidal patient attempting to leave the hospital. Keown approached

the plaintiff in the hospital parking lot and asked her to return to the building. After she refused,

he called the Carbondale Police Department to request assistance. According to Keown, he

believed that the plaintiff might be a danger to herself or others based on “the way she was

acting.” Asked to explain, he stated that her behavior was “aggressive.” However, he specified

only that she cursed at him and refused to go back into the building voluntarily. Keown further

testified that the plaintiff did eventually walk back into the building of her own accord once she

saw the police arrive.

¶ 30   Keown testified that after the plaintiff returned to the hospital building, she was brought

to an exam room. A nurse, an emergency room technician, two security guards, and at least one

police officer were in the room with her. Keown acknowledged that, at this point, the plaintiff

was not free to leave. He further acknowledged that he stood in the doorway of the room to

prevent her from leaving.

¶ 31   Keown explained that the defendant’s policy of detaining patients believed to be

potentially suicidal exists to avoid liability in case the patient harms himself or herself after

leaving the hospital. He testified that the defendant’s policy is to “place [the patient] in a paper

gown and [to] take their belongings and put them in a belongings bag.” He explained that the

patients’ belongings are taken to guard against the possibility that the patient has medication or

anything else she could use to harm herself. He did not give any reason for the policy of insisting

that the patient change into a paper hospital gown.

¶ 32   Keown testified that the plaintiff continued to state that she wanted to leave and refused

to change into a hospital gown or hand over her purse. After attempting to convince her to give

up her purse voluntarily, a nurse asked the security guards to take it from her by force. Keown
                                                 11
testified that the plaintiff bit a police officer’s hand during the ensuing struggle for possession of

her purse.

¶ 33   On cross-examination, Keown was asked, “Did you have a [section] 602 certificate

advising you that Ms. Irvin was to be secured and kept until she could be evaluated by a doctor?”

See 405 ILCS 5/3-602 (West 2014). Keown replied, “It was verbal.” He testified that, contrary to

the plaintiff’s claim, he did tell her why she was required to stay. He did not state whether he or

any other staff members asked her if she would be willing to talk to a mental health counselor.

¶ 34   Officer Mark Murray testified that he first encountered the plaintiff when she was in an

exam room. He stated that hospital staff told her to relinquish her purse, put on a hospital gown,

and provide blood and urine samples, which she refused to do. He, too, was asked on cross-

examination about the existence of section 602 certificates. He replied, “The nurse that I spoke to

said she was not free to leave.”

¶ 35   Officer Murray’s testimony concerning the struggle over possession of the plaintiff’s

purse was largely consistent with the testimony of both Keown and the plaintiff. As stated

previously, however, Officer Murray indicated that he thought one of the security guards pushed

the plaintiff’s head down, which Keown denied. Officer Murray also testified that the plaintiff bit

him during this struggle, which the plaintiff denied. After that, both her hands and feet were

“secured” to the bed. Officer Murray testified that he remained with the plaintiff until she was

discharged approximately 15 to 20 minutes after the incident, and he then transported her to the

jail. Officer Murray did not recall whether any doctor saw her during that time period.

¶ 36   Also attached to the defendant’s motion for summary judgment was a patient information

record from the plaintiff’s emergency room visit. The record indicates that the plaintiff arrived at

the emergency room at 2:11 p.m., was seen by a triage nurse at 2:45 p.m., and admitted at 3:01


                                                 12
p.m. She was first taken to an exam room at 3:52 p.m. The record shows that the plaintiff’s chief

complaint upon admission was pain in her leg.

¶ 37    Notes from Dr. John Bollig indicate that he first saw the plaintiff at 5:28 in the evening.

She described to him the symptoms of pain and swelling she was experiencing and provided a

medical history. Under the heading “Re-Evaluation & MDM,” Dr. Bollig noted that Dr. Parks

called him to inform him that the plaintiff “has been making suicidal statements over the last

week,” which was “the big reason he told her to come to the [emergency department].” Dr.

Bollig further wrote:

        “When I confronted the patient with this she was very coy but stated that if she had to

        live with her chronic leg problems she would do what ever needed to be done to put it to

        an end ***. She would cut her leg and let it all drain out or whatever. I informed her that

        if we were able to medically clear her, we would need to have mental health come in and

        talk with her to decide psychiatric disposition. She shortly after ran out of the [emergency

        department].”

Dr. Bollig did not indicate what time either his discussion with Dr. Parks or his reevaluation of

the plaintiff took place.

¶ 38    Three additional portions of the patient information record are relevant. A 7:29 p.m. note

entered by nurse Chelsey Stacy states, “Patient walked out of ER room 2, stating, ‘I’m not going

to have a counselor speak to me!’ Went to ERBO asking for discharge papers. Security called.”

A 7:30 note entered by nurse Janet Donahue indicates that the plaintiff was escorted to a

different exam room by two security guards and three police officers. Donahue noted that when

the plaintiff entered the room, she “very loudly stated, ‘I am not staying here. I have a sick

animal at home. Just let me talk to the counselor, just get them here.’ ” Donahue noted that

another nurse explained to the plaintiff that because she was there for suicidal ideations, hospital
                                                13
policy required her to get into a hospital gown and surrender her belongings. The nurse also

explained that they could request that a counselor come to the room to talk to her after she got

into the hospital gown and provided a urine sample, so hospital personnel could complete

“required lab work.” As we mentioned earlier, hospital policy also required a patient in the

plaintiff’s position to submit to blood testing prior to speaking with a counselor. The patient

information record indicates that the plaintiff’s blood was drawn at 6:43 p.m., presumably for

this purpose. Although there is some dispute in the record concerning the precise timing of this

sequence of events, the blood draw appears to have occurred before the plaintiff attempted to

leave the hospital.

¶ 39   The plaintiff did not file a response to the defendant’s motion for summary judgment.

The matter came for a hearing on October 17, 2017. The court noted in a docket entry that it

heard arguments on the defendant’s motion for summary judgment, but the record does not

contain a transcript of that hearing. On October 19, the court entered an order granting the

defendant’s motion for summary judgment. This appeal followed.

¶ 40                                        II. ANALYSIS

¶ 41   False imprisonment has two elements. To prevail, a plaintiff must prove both that (1) her

personal freedom was curtailed against her wishes and (2) her detention was unreasonable or

unlawful. Doe v. Channon, 335 Ill. App. 3d 709, 713 (2002). The parties agree that the plaintiff

was detained against her wishes by the defendant. As such, only the second element—the

lawfulness of that detention—is at issue.

¶ 42   This case comes to us after a ruling on a motion for summary judgment. Summary

judgment is not appropriate unless the pleadings, depositions, and other evidence on file show

that there are no genuine issues of material fact and that the moving party is entitled to judgment

as a matter of law. Id. Summary judgment is also not appropriate if it is possible to draw more
                                                14
than one reasonable inference from even undisputed facts in the record. Buchaklian v. Lake

County Family Young Men’s Christian Ass’n, 314 Ill. App. 3d 195, 199 (2000). In determining

whether genuine issues of material fact exist, courts must consider the record in the light most

favorable to the nonmoving party. United National Insurance Co. v. Faure Brothers Corp., 409

Ill. App. 3d 711, 716 (2011). As the defendant emphasizes, questions of fact that are not material

will not preclude summary judgment. A question of fact is material if it is relevant to one of the

controlling issues in the case. First of America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165,

178 (1995). Summary judgment should not be granted unless the moving party’s right to

judgment is “clear and free from doubt.” (Internal quotation marks omitted.) United National

Insurance Co., 409 Ill. App. 3d at 716. We review de novo the court’s ruling on a motion for

summary judgment. Id.

¶ 43   The plaintiff argues that summary judgment was inappropriate because there were

genuine questions of material fact concerning the reasonableness of the defendant’s decision to

detain her. Resolving this question requires us to consider when it is lawful to detain an

individual for a mental health evaluation. This is because detention of an individual pursuant to

lawful authority cannot constitute false imprisonment. Doe, 335 Ill. App. 3d at 713. To answer

that question, we must look to the Mental Health Code.

¶ 44   We first note that, as a general matter, a patient has the right “to refuse generally accepted

mental health *** services.” 405 ILCS 5/2-107(a) (West 2014). Services can be administered on

an outpatient basis by court order under certain circumstances. See id. § 1-119.1. Otherwise,

treatment may not be performed against a patient’s wishes unless it is “necessary to prevent the

[patient] from causing serious and imminent physical harm” to herself or others. (Emphasis

added.) Id. § 2-107(a). A patient likewise has the right to refuse to submit to an examination to

determine whether she is subject to involuntary admission. Id. § 3-208. Indeed, the evaluator
                                                15
conducting the examination is required to inform the patient that she does not have to speak with

the evaluator. Id.

¶ 45    The Mental Health Code does, however, include procedures to follow to obtain the

evaluation of an unwilling patient who may be subject to involuntary admission on an emergency

basis. A patient is subject to involuntary admission on an emergency basis if immediate

admission is necessary to protect the patient or others from imminent physical harm. Id.

§ 3-601(a). To have a patient admitted, an adult must present a petition to the director of a mental

health facility. Id. The petition must include a “detailed statement” setting forth the reasons the

patient is subject to immediate involuntary admission. Id. § 3-601(b)(1).

¶ 46    A petition for emergency involuntary admission must be accompanied by the certificate

of a physician, psychiatrist, or other qualified examiner who examined the patient within the

previous 72 hours. Id. § 3-602. As noted earlier, however, a patient is generally not required to

submit to an examination for this certificate. See id. § 3-208. If the patient refuses to be

evaluated, she “may be detained for examination in a mental health facility.” Id. § 3-603(a). We

note that the statutory definition of a mental health facility includes any section of a licensed

hospital that provides treatment for people with mental illnesses. Id. § 1-114. To have a patient

detained for examination, the petition required by section 3-601 must be presented to the director

of the facility. In addition to complying with the requirements of section 3-601, the petitioner

must assert that a diligent effort was made to obtain a certificate and that a diligent effort was

made to persuade the patient to submit to a mental health evaluation willingly. Id. § 3-603(b)(2),

(4). 1 If a patient is detained for examination without a certificate, she may not be held for more



        1
          The pertinent statute requires the petitioner to specify that (1) he believes, based on personal
observation, that the patient is subject to involuntary admission, (2) a diligent effort was made to obtain a
certificate, (3) no qualified examiner was found who has examined the patient or could do so, and (4) a
                                                    16
than 24 hours unless a certificate is furnished within that time period. Id. § 3-604. For reasons we

will discuss in more detail later in this opinion, we find that there are genuine issues of material

fact concerning the defendant’s compliance with these requirements.

¶ 47   The defendant, however, argues that whether its decision to detain the plaintiff against

her wishes was lawful depended solely on whether it had probable cause to believe that she may

be suicidal. We disagree. Although the defendant cites numerous cases holding a detention

lawful based on probable cause, each of these cases arose after a police officer or security guard

detained someone believed to have committed a crime. See, e.g., Poris v. Lake Holiday Property

Owners Ass’n, 2013 IL 113907, ¶¶ 61, 65; Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455,

474 (1990); Grainger v. Harrah’s Casino, 2014 IL App (3d) 130029, ¶ 38; Gill v. Village of

Melrose Park, 35 F. Supp. 3d 956, 963 (N.D. Ill. 2014). In such cases, it makes sense to hold that

a plaintiff’s detention is reasonable if it is supported by probable cause because, in the criminal

context, probable cause is what makes the detention of an individual lawful. As we explained

earlier, if the detention of an individual is lawful, it cannot constitute false imprisonment. See

Doe, 335 Ill. App. 3d at 713.

¶ 48   In the mental health context, unlike the criminal context, what makes the detention of an

individual lawful is compliance with the provisions of the Mental Health Code. See id. at 713-14

(affirming summary judgment in favor of the defendants in an action for false imprisonment

upon finding that a plaintiff’s overnight period of involuntary admission was lawful because the

defendants complied with the applicable provisions of the Mental Health Code); Sassali v.

DeFauw, 297 Ill. App. 3d 50, 52 (1998) (explaining that “a lawful detention pursuant to the

provisions of the Mental Health Code cannot be the basis of a false imprisonment claim”);



diligent effort was made to persuade the patient to submit to an evaluation voluntarily. 405 ILCS 5/3-
603(b) (West 2014).
                                                 17
Arthur v. Lutheran General Hospital, Inc., 295 Ill. App. 3d 818, 826-27 (1998) (explaining that

the question in a false imprisonment case was whether the plaintiff’s involuntary commitment

was “detention under legal process,” and finding that the “statutorily inadequate certificate and

petition” in that case did not suffice to meet this standard). We recognize that all three of these

cases involved plaintiffs who were involuntarily committed, while the plaintiff in this case was

merely detained for an evaluation. At oral argument, the defendant made this distinction, arguing

that the provisions of the Mental Health Code were inapplicable because the plaintiff was not

involuntarily admitted. We are not persuaded. As we have already discussed, the Mental Health

Code includes provisions that govern precisely the circumstances involved in this case—the

procedures necessary to conduct an evaluation of an unwilling patient who may be subject to

involuntary admission on an emergency basis. Detention of such a patient is not lawful unless

these procedures are followed.

¶ 49   The defendant does call our attention to one case in which a court applied the probable

cause standard in the mental health context. That case is Chathas v. Smith, 884 F.2d 980 (7th Cir.

1989). We find Chathas to be distinguishable.

¶ 50   One of the plaintiffs in Chathas was a police officer who filed a workers’ compensation

claim, asserting anxiety, neurosis, and depression as his work-related injuries. Id. at 981. At that

time, litigation was pending related to the police department’s failure to enroll him in the Illinois

Municipal Retirement Fund. The pension litigation was set for a hearing on March 30, 1981. Id.

¶ 51   Shortly before that date, the officer, Ellis, was examined by a psychiatrist to verify his

claim of mental disability. Id. The psychiatrist, Dr. Doshi, examined Ellis twice—once on March

19, and once on March 21. Id. at 981-82. During the March 19 examination, Ellis told Dr. Doshi

that he believed that municipal officials and police officers were conspiring against him because

of the pending pension litigation. Id. He told Dr. Doshi that he believed that those individuals
                                                 18
had threatened his life and the life of his attorney. He stated that if he felt “ ‘cornered,’ ” he

might “ ‘blow somebody away.’ ” Id. at 982. Dr. Doshi was concerned that the March 30 hearing

in the pension case could trigger Ellis’s potential for violence. The March 21 examination did not

alleviate this concern. Dr. Doshi urged Ellis to voluntarily admit himself to a mental health

facility. When Ellis refused, Dr. Doshi explained that he was obligated to warn the potential

victims of his threatened violence. Id.

¶ 52   Dr. Doshi called the police department later that day to relate his concerns. One week

later—on March 28—a police sergeant asked Dr. Doshi to complete a certificate for the

involuntary commitment of Ellis. Dr. Doshi did so. Id. at 983. Two days later, a hearing was set

to take place in the pension litigation. On the morning of the hearing, an attorney representing

the Village of Evergreen Park in the pension case arrived early and presented Dr. Doshi’s

certificate to the court. He asked the court to enter an order for involuntary commitment, which

the court refused to do. Id.

¶ 53   When Ellis and his attorney, Chathas, arrived for the hearing in the pension case later that

morning, a group of police officers stopped them from entering the court room and detained

them in a jury room. Id. Ellis was prevented from leaving that room until paramedics arrived. Id.

at 984. The paramedics transported Ellis to a mental health facility. Chathas voluntarily rode

with him in the ambulance, and the officers who had detained them arrived separately. Id. The

admissions specialist at the facility told the officers that the certificate signed by Dr. Doshi was

not valid because Dr. Doshi had not examined Ellis within the previous 72 hours. He asked the

officers if they personally witnessed any behavior that indicated to them that the plaintiff was a

danger to himself or others. The officers indicated that they had not. Id. The admissions

specialist therefore declined to admit Ellis to the facility or hold him for an evaluation. Id.


                                                  19
¶ 54    Ellis and Chathas subsequently filed a section 1983 petition in federal court, alleging that

the police officers and other public officials involved in the incident violated their constitutional

rights. Id. at 985 (citing 42 U.S.C. § 1983 (1988)). The district court directed a verdict in favor of

all defendants. Id. In relevant part, the district court found that Ellis could not prove that his

constitutional rights had been violated because the defendants had probable cause to take him

into custody and transport him to the mental health facility for emergency observation, “or at the

very least [they] had a good-faith belief that they had probable cause.” Id. at 987. The plaintiffs

appealed. Id. at 986.

¶ 55    The Seventh Circuit first noted that “[i]f the issue were whether [the] defendants

complied with the governing state law, then we would have to reverse the district court’s grant of

a directed verdict. However, [section] 1983 only provides a remedy for federal law violations.”

Id. at 987. The court held that as long as the police officer defendants had probable cause to take

Ellis into custody to transport him to the facility, as the district court found, their arrest of Ellis

was legal even though he turned out not to be subject to commitment. Id. The court explained

that although the defendants’ failure to follow the applicable procedures in the Mental Health

Code violated a “state-created procedural right,” it did not necessarily violate a constitutional

right. Id. The Chathas court thus made clear that the question before it was narrow because the

cause of action was a section 1983 claim.

¶ 56    In this case, by contrast, the question is not whether the plaintiff’s federal constitutional

rights were violated. Rather, the question is whether the defendant is liable for committing a tort

recognized under state law. 2 More specifically, the question is whether the defendant detained


        2
         Failure to comply with the Mental Health Code does have constitutional implications. See In re
George O., 314 Ill. App. 3d 1044, 1046 (2000) (citing In re Rovelstad, 281 Ill. App. 3d 956, 964-65
(1996)). Those constitutional questions are not at issue in this tort action against a private defendant,
however.
                                                   20
the plaintiff unlawfully. As we have already explained, the detention was lawful only if it

complied with the requirements of the Mental Health Code. For the following reasons, we find

that there are genuine issues of material fact on that question.

¶ 57   First, there are genuine questions of fact concerning whether the defendant’s emergency

room personnel made any efforts at all to persuade the plaintiff to submit to a mental health

evaluation voluntarily before deciding to detain her. This fact is material because before a patient

may be detained for an evaluation, the petitioner must be able to attest that a diligent effort was

made to convince her to submit to the evaluation willingly. 405 ILCS 5/3-603(b)(4) (West 2014).

The plaintiff testified in her deposition that she was not even told why she was being detained.

This testimony was contradicted by the patient information record, but the defendant is not

entitled to judgment as a matter of law where there is a dispute as to whether it complied with the

requirement that a diligent effort be made to persuade the plaintiff to submit to an evaluation

voluntarily. It is also worth noting that, although the defendant presented evidence that its

employees told the plaintiff that she needed to be evaluated by a mental health counselor, there is

no evidence that they ever asked her to do so voluntarily.

¶ 58   Second, it is not clear from the record that the defendant complied with the requirement

of presenting a petition to the director of a mental health facility to have the plaintiff detained for

examination. See id. §§ 3-601, 3-603. In fact, on the record before us, it appears that this

requirement was not met. As mentioned earlier, the statutory definition of a mental health facility

includes the section of a licensed hospital that provides mental health care. Id. § 1-114. The

plaintiff was never transferred to the mental health unit of the defendant’s hospital, and there is

no indication in the record before us that any of its emergency department staff presented the

required petition to the appropriate person in the mental health department. See id. § 1-104


                                                  21
(defining the “facility director”). Thus, the record presents genuine questions of fact on the

material issue of the defendant’s compliance with the requirement of a petition.

¶ 59   Third, there is some evidence in the record suggesting that the plaintiff may have

reluctantly agreed to speak with a counselor as long as she could do so without additional delay.

The parties appear to agree that the plaintiff’s presence at the emergency room remained

voluntary until she attempted to leave sometime between 7 and 7:20 p.m. The patient

information record shows that her blood was drawn and a drug screening authorized before she

attempted to leave, and the notes entered by one of the nurses indicate that the plaintiff asked the

nurses to send for the counselor right away. While the Mental Health Code authorizes the

detention of a patient in a mental health facility, it does not authorize the detention of a patient in

an emergency room to comply with the hospital’s internal policy of imposing prerequisites on a

patient’s access to the mental health services. Thus, if the plaintiff’s presence in the emergency

room became an unwilling detention only for the purpose of obtaining a urine sample and

forcing her to change into a paper gown and surrender possession of her purse, it was not

authorized by the Mental Health Code. Although the bulk of the evidence suggests that the

plaintiff did not agree to remain at the hospital for an evaluation at all, we find that the existing

record leaves genuine questions of fact on this point.

¶ 60   Fourth, the detention of a patient for a mental health evaluation is only authorized if the

petitioner believes that the patient is or may be subject to involuntary admission and that

immediate hospitalization is necessary to prevent harm to the patient or others. See id. §§ 3-600,

3-601, 3-603. If the defendant in this case were an individual who believed that the plaintiff

presented an immediate risk of suicide or self-harm, this requirement would obviously be

satisfied. As we discussed earlier, however, it is not clear from the record what information Dr.

Parks gave to Dr. Bollig, the emergency room physician who made the decision to detain the
                                                  22
plaintiff. In addition, Dr. Parks appears to be affiliated with the defendant. He testified in his

deposition that the defendant is the “parent company” of his practice, Logan Primary. Thus, there

are questions as to whether Dr. Parks’s knowledge of the plaintiff’s mental state is chargeable to

the defendant. This is significant because Dr. Parks admitted in his deposition that during the two

days preceding the plaintiff’s visit to the emergency room, he did not believe it was necessary to

take steps to intervene other than encouraging her to seek counseling.

¶ 61   In the face of these disputed questions of material fact, we hold that the defendant was

not entitled to judgment as a matter of law. As such, the trial court erred in granting summary

judgment.

¶ 62   The defendant calls our attention to two additional cases that it contends support its right

to summary judgment. We find no support for the defendant’s position in either case.

¶ 63   The first of these cases is Coleman v. Provena Hospitals, 2018 IL App (2d) 170313.

There, a nurse discovered that a patient with a history of mental illness had a gun in his

possession. Id. ¶¶ 1, 3. The patient was shot to death during a confrontation with police officers

after he pulled the gun. Id. ¶ 3. The decedent’s sister filed a wrongful death action, asserting that

the hospital was negligent for failing to search the decedent for weapons when he was admitted

the day before the shooting. Id. ¶ 1. The plaintiff appealed an order granting summary judgment

in favor of the hospital. Id. ¶¶ 11-12. One of the questions on appeal was whether the defendant

hospital had a duty to protect the decedent from his own criminal act. Id. ¶ 14. The Second

District first noted that Illinois courts have long recognized “that hospitals are under a duty to

exercise reasonable care to protect their patrons from harm.” Id. ¶ 17. The court then went on to

address the defendant hospital’s arguments related to the reasonable foreseeability of that harm

before concluding that the defendant owed the decedent a duty to protect him from harming

himself. Id. ¶¶ 18-19.
                                                 23
¶ 64   Here, the plaintiff has not alleged that the defendant breached a duty of care.

Nevertheless, we agree with the defendant and the Coleman court that a hospital has a duty to

take appropriate steps to prevent a patient from foreseeable harm, including self-harm. But this

does not give its staff carte blanche authority to take steps that are not authorized under the

Mental Health Code. As we have discussed at length in this opinion, the Mental Health Code

provides procedures to be followed when a patient is thought to be at risk of imminent self-harm

and is unwilling to voluntarily submit to an evaluation. The record in this case does not contain

undisputed evidence establishing that those procedures were followed.

¶ 65   The defendant also calls our attention to the decision of a Missouri appellate court in

Patrich v. Menorah Medical Center, 636 S.W.2d 134 (Mo. Ct. App. 1982). There, a patient was

admitted to the defendant hospital’s intensive care unit in a coma, having suffered what appeared

to be a self-administered drug overdose. Id. at 135. When the plaintiff was conscious and able to

talk, it became apparent to the physicians treating him that he was mentally ill. Id. In fact, he had

been treated for mental illness at the same hospital on two prior occasions. Id. at 135-36. When

the plaintiff was well enough to leave the intensive care unit, he was transferred to the hospital’s

mental health ward. Id. at 136. The day after he was transferred to the mental health ward, the

superintendent of the defendant hospital and the plaintiff’s treating physicians executed the

appropriate documents to have the plaintiff admitted on an emergency basis. Id.

¶ 66   The plaintiff filed a complaint raising a claim of false imprisonment. Id. at 135. The

question was whether his detention in the mental health ward the day before the defendant’s

medical personnel began the statutory process for emergency involuntary commitment was

unlawful. Id. at 137. The trial court directed a verdict in favor of the defendant. Id. at 135. In

affirming this ruling, the Missouri appellate court noted that “[a]t common law, a private person

could, under some circumstances, legally restrain [a person] believed to be mentally ill.” Id. at
                                                 24
138 (citing Keleher v. Putnam, 60 N.H. 30 (N.H. 1880)); see also Warner v. State, 79 N.E.2d

459, 463 (N.Y. 1948). The court noted, however, that such restraint is only authorized if

“ ‘necessary to prevent some immediate injury by the [mentally ill person] to himself or

others.’ 44 C.J.S. Insane Persons, p. 161.” (Emphasis added.) Patrich, 636 S.W.2d at 138. The

court further noted that the Missouri Supreme Court recognized this common law principle of

permissible restraint based on necessity. Id. (citing In re Moynihan, 62 S.W.2d 410, 418 (Mo.

1933)). The court ultimately concluded that the “detention of plaintiff for less than 24 hours”

before the defendant filed the appropriate documents was lawful under this common law

principle. Id. at 139.

¶ 67    We find no support in Patrich for the defendant’s position for two reasons. First and

foremost, an out-of-state case is not binding on this court. The defendant has not cited to any

Illinois cases recognizing a common law principle authorizing the detention of a mentally ill

individual based on necessity, and our research has uncovered no such cases.

¶ 68    Second, assuming Illinois courts were to recognize such a principle, it would not be

applicable here. The provisions of the Mental Health Code we have outlined in this opinion were

sufficient to permit emergency room personnel to transfer the plaintiff to the defendant’s mental

health department or some other facility for evaluation quite quickly. Thus, resort to restraint not

authorized under the Mental Health Code cannot be justified by “necessity” under the

circumstances of this case. See Warner, 79 N.E.2d at 463 (recognizing common-law authority to

detain a mentally ill individual based on immediate necessity under New York law, but finding

that such authority may be exercised only “in emergencies beyond” the type of emergency

covered by the statutory provisions authorizing emergency commitment).




                                                25
¶ 69   Nothing in either Coleman or Patrich alters our conclusion that there are genuine

questions of material fact to be resolved concerning the lawfulness of the plaintiff’s detention in

this case. As such, summary judgment was inappropriate.

¶ 70                                    III. CONCLUSION

¶ 71   For the foregoing reasons, we reverse the judgment of the trial court granting summary

judgment in favor of the defendant. We remand for further proceedings consistent with this

opinion.

¶ 72   Reversed and remanded for further proceedings.




                                                26
                              2019 IL App (5th) 170446
                                   NO. 5-17-0446
                                      IN THE
                          APPELLATE COURT OF ILLINOIS
                                 FIFTH DISTRICT


ANITA IRVIN,                                    )     Appeal from the
                                                )     Circuit Court of
       Plaintiff-Appellant,                     )     Jackson County.
                                                )
v.                                              )     No. 15-L-74
                                                )
SOUTHERN ILLINOIS HEALTHCARE,                   )
d/b/a Carbondale Memorial Hospital;             )
THE CITY OF CARBONDALE; THE CITY OF             )
CARBONDALE POLICE DEPARTMENT; and               )
OFFICER MARK MURRAY,                            )
                                                )
       Defendants                               )
                                                )     Honorable
(Southern Illinois Healthcare, d/b/a Carbondale )     Christy W. Solverson,
Memorial Hospital, Defendant-Appellee).         )     Judge, presiding.
______________________________________________________________________________

Opinion Filed:         April 23, 2019
______________________________________________________________________________

Justices:           Honorable Melissa A. Chapman, J.

                  Honorable Thomas M. Welch, J., and
                  Honorable Judy L. Cates, J.
                  Concur
______________________________________________________________________________

Attorneys         Bryan A. Drew, Brittany L. Elliott, Drew Law Group, 905 W. Washington
for               Street, Benton, IL 62812
Appellant
______________________________________________________________________________

Attorneys         John C. Ryan, Kara L. Jones, Feirich/Mager/Green/Ryan, 2001 West
for               Main Street, P.O. Box 1570, Carbondale, IL 62903
Appellee
______________________________________________________________________________
