Miranda v. County of Lake, No. 17-1603 (7th Cir. 2018)
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On October 12, Gomes, a 52-year-old Indian national, was arrested for failing to appear for jury duty. A non-citizen, Gomes, was actually ineligible for jury duty. Gomes pulled away from the officer and was charged with resisting arrest. At Lake County Jail, Gomes was placed on suicide watch. On October 14, Gomes was transferred to ICE custody. She was released within days. On December 14, after failing to appear on the resisting-arrest charge, Gomes was back in the Jail. Her physical and mental health were deteriorating. She refused to eat and drink. Medical providers did little other than monitoring. Gomes died. The administrator of Gomes’s estate filed suit under 42 U.S.C. 1983 against Lake County, Jail officials, and CCS, the Jail’s contract medical provider, and its employees. The court dismissed the County defendants and granted the medical defendants FRCP 50(a) judgment on some claims. The Estate prevailed on another claim. The Seventh Circuit affirmed in part. Nothing in the record justifies a finding of personal liability against the County defendants, who received assurances that CCS staff were regularly monitoring Gomes. Medical providers stated that Gomes was stable and promised to send her to the hospital if necessary. The Estate presented no evidence that some feature in the Jail’s policy caused Gomes’s death. Rule 50(a) judgment, however, was premature. The record contains ample evidence from which a jury could infer that the doctors’ inaction diminished Gomes’s chances of survival.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17-1603 ALFREDO MIRANDA, Administrator of Estate of Lyvita Gomes, Plaintiff-Appellant, v. COUNTY OF LAKE, et al., Defendants-Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 C 4439 — Sharon Johnson Coleman, Judge. ____________________ ARGUED DECEMBER 6, 2017 — DECIDED AUGUST 10, 2018 ____________________ Before WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges. WOOD, Chief Judge. In the fall of 2011, Lyvita Gomes failed to show up for jury duty. This minor infraction triggered a series of events that led to her untimely death in the early days of 2012. She wound up in the county jail, where she refused to eat and drink. The medical providers who worked at the Jail did little other than monitoring as she wasted away in her 2 No. 17-1603 cell. By the time she was sent to the hospital, it was too late to save her. Alfredo Miranda, the administrator of Gomes’s estate, brought an action under 42 U.S.C. § 1983 and assorted statelaw theories against Lake County, the Jail o cials (the “County defendants”), and Correct Care Solutions (CCS, the Jail’s contract medical provider) and its employees (the “medical defendants”). The district court dismissed the County defendants at summary judgment. The medical defendants proceeded to trial, but halfway through the proceeding the court granted judgment as a matter of law under Federal Rule of Civil Procedure 50(a) for them on some claims. The Estate prevailed to a modest degree on another claim, and part of the case resulted in a mistrial. Our principal ruling in response to the Estate’s appeal is that the Rule 50(a) judgment was premature, and so further proceedings are necessary. I A On October 12, 2011, an o cer arrested Gomes, a 52-yearold Indian national, for failing to appear for jury duty. (In hindsight, this was the County’s rst misstep: as a non-citizen, Gomes was categorically ineligible to serve as a juror. 705 ILCS 305/2(a)(4).) Gomes pulled away from the o cer as he attempted to arrest her. That action earned her a second charge of resisting arrest. The o cers took Gomes to Lake County Jail, where she made statements that landed her on suicide watch the next day. But she did not stay at the Jail long. On October 14, Gomes was transferred to the custody of the federal Immigration and Customs Enforcement (ICE) service, which released her within a few days. No. 17-1603 3 Roughly two months later, on December 14, after failing to appear in court on the resisting-arrest charge, Gomes found herself back in the Lake County Jail. Though o cials initially placed her in the general population, it quickly became apparent that her physical and mental health were deteriorating, and so she was moved. On December 16, CCS’s Director of Mental Health, Jennifer Bibbiano (a social worker), performed a mental health evaluation on Gomes. Bibbiano documented that Gomes had ingested no food or water since arriving at the Jail two days earlier. As a result, Gomes was transferred the next day to the Jail’s medical pod for closer monitoring. On December 18, sta placed Gomes on suicide watch and the hunger strike protocol. At that point, after she had gone four days without food or water, sta weighed her for the rst time and recorded a weight of 146 pounds. Over the next ten days, this number plummeted; by December 28, Gomes weighed only 128 pounds. During this period, social workers and physicians continued to assess Gomes daily. Defendant Dr. Rozel Elazegui, an internist, saw Gomes on December 22 and 27. In several progress notes, the CCS sta reported various symptoms of dehydration, such as skin tenting. Gomes’s refusal to eat or drink and her unresponsiveness often prevented the medical sta from recording her vital signs and collecting any blood or urine samples. For most of this time, Gomes lay in bed and refused to speak. As Gomes’s physical condition worsened, concerns about her mental state grew. When Gomes appeared in court on December 20, the judge ordered a mental tness examination. On December 22, Gomes was identi ed as needing an urgent 4 No. 17-1603 psychiatric visit. That prompted a visit two days later from psychiatrist Hargurmukh Singh, who rst met Gomes then and diagnosed her with a “psychotic disorder not otherwise speci ed.” He prescribed no medication. After seeing Gomes again on December 27, Dr. Singh concluded that her psychosis rendered her unable to understand the risks of not eating and unable to participate in her treatment plan. But his only advice to Dr. Elazegui, who wanted to perform an involuntary blood draw for monitoring purposes, was that Elazegui could do so if push came to shove. Around this time the o cials in charge of Lake County Jail entered the picture. On December 26, Wayne Hunter, the Jail’s acting chief, was rst noti ed by email that Gomes was in the Jail and was refusing medical treatment and tests. Hunter received assurances that CCS sta were monitoring Gomes’s condition and that they would provide him with any updates. Two days later, Hunter personally went down to Gomes’s cell in a futile attempt to persuade her to eat. On December 27, Scott Fitch, the liaison between the correctional and medical sta , learned about Gomes. He too asked for updates. Fitch called Gomes’s public defender, entreating her to visit and encourage her client to eat. Sheri Mark Curran did not hear about Gomes until December 29, the day she left the Jail. That same day, Jail o cials went to court to get Gomes formally released from custody. Also on December 29, Dr. Young Kim, another CCS internist, returned to work from a vacation. Dr. Kim was surprised to learn that Gomes had remained in the Jail while continuing to refuse all food and drink. (A few stray comments in Gomes’s medical records suggest that she may have rubbed water on her body and perhaps taken a few sips of water from No. 17-1603 5 her sink. But the record as a whole implies little to no water intake.) Dr. Kim immediately called an ambulance to take Gomes to the hospital for evaluation and treatment of her dehydration and psychosis. Unfortunately, this intervention came too late. On January 3, 2012, ve days after arriving at the hospital, Gomes died. The autopsy opined that she died of “Complications of Starvation and Dehydration.” The manner of death was suicide. B The Estate led this action against Lake County, Sheri Curran, Hunter, Fitch, CCS, Dr. Elazegui, Dr. Singh, Bibbiano, and two more social workers, Ruth Muuru and Edith Jones. It raised due process claims under 42 U.S.C. § 1983, state statutory and common law tort claims, violations of international treaty obligations, and claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Only the claims against the medical defendants went to trial. But the jury never had the opportunity to resolve some of those claims. At the close of the Estate’s presentation of evidence, the court entered judgment as a matter of law under Rule 50(a) for social workers Muuru and Jones on all claims against them. The court also concluded that the Estate had failed to present enough evidence to reach the jury on the question whether the medical defendants caused Gomes’s death; it therefore granted them judgment as a matter of law on that part of the case. The only question remaining for the jury was the Estate’s due process claim for inadequate medical care, limited to the pain and su ering Gomes experienced while in the Jail. The jury failed to reach a unanimous verdict regarding the conduct of Dr. Elazegui and Dr. Singh but it held social worker Bibbiano liable. It awarded the Estate 6 No. 17-1603 $119,000 in compensatory damages, which Bibbiano has paid in full. The Estate does not challenge the jury verdict, but it takes issue with four aspects of the proceedings below: rst, the district court’s dismissal of the County defendants; second, the judgment as a matter of law on causation of death; third, the court’s ruling barring the Estate from pursuing one of its theories of recovery under the Due Process Clause; and fourth, the court’s instruction on the applicable legal standard. While we nd no merit in its rst point, we conclude on the latter three that the Estate is entitled to the opportunity to try its full case against the medical defendants before a jury. II A We start with the Estate’s attempt to revive some of the claims against the County defendants. It rst challenges the district court’s conclusion that the Jail’s chief, Hunter, and liaison, Fitch, were not deliberately indi erent to Gomes’s inadequate medical care in violation of her due process rights. We need not delve into the nuances of the standard for such a claim, because the Estate faces an insurmountable hurdle independent of that standard. We have long recognized the fact that correctional institutions (like most entities in a modern economy) engage in the division of labor. See Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005) (citation omitted). When detainees are under the care of medical experts, non-medical jail sta may generally trust the professionals to provide appropriate medical attention. E.g., Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 676, 678–79 (7th Cir. 2012); see also Rasho No. 17-1603 7 v. Elyea, 856 F.3d 469, 478–79 (7th Cir. 2017) (holding that medical professionals were not liable when sued in their capacity as “prison administrators and policymakers, not treaters”). We will not nd a jail o cial to have acted with deliberate indi erence if she reasonably relied on the judgment of medical personnel. E.g., Greeno, 414 F.3d at 655–56; Estate of Perry v. Wenzel, 872 F.3d 439, 458–59 (7th Cir. 2017). On the other hand, if jail o cials had reason to know that their medical sta were failing to treat or inadequately treating an inmate, liability is possible. King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012); Rice, 675 F.3d at 676. Nothing in this record justi es a nding of personal liability against the County defendants. Hunter and Fitch received assurances that CCS sta were regularly monitoring Gomes. They requested periodic updates on her condition. The medical providers informed Hunter and Fitch that Gomes was stable and promised to send her to the hospital if necessary. Knowing that the CCS employees were on the case, Hunter and Fitch were entitled to rely on their professional judgments. See Arnett v. Webster, 658 F.3d 742, 756 (7th Cir. 2011) (“This is not a case where [the plainti ] was being completely ignored by medical sta .”). The fact that they expressed concern about Gomes’s condition and tried directly and indirectly to get her to eat does not make them culpable. Because we nd that Fitch and Hunter’s reasonable reliance on their medical providers shields them from liability under section 1983, we need not consider the County defendants’ alternative arguments for dismissal. 8 No. 17-1603 B While the Estate has apparently abandoned its claim that Sheri Curran is individually liable for Gomes’s inadequate medical care, it is still trying to pursue an o cial-capacity claim about the Jail’s allegedly de cient hunger-strike policy. As an Illinois sheri , Curran has nal policymaking authority over jail operations. DeGenova v. Sheri of DuPage Cnty., 209 F.3d 973, 976 (7th Cir. 2000). He is thus a proper party for a claim under Monell v. Department of Social Services of New York, 436 U.S. 658, 690–91 (1978), targeted at policies and customs that deprive inmates of their federal rights. Id. Monell liability is possible even if no individual o cial is found deliberately indi erent. Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 379 (7th Cir. 2017) (en banc). The focus of the Estate’s Monell claim is Lake County Jail’s hunger-strike policy. That policy required four things: (1) the immediate noti cation of medical sta when an inmate begins a hunger strike; (2) documentation of meal refusals and immediate noti cation of a command o cer after an inmate’s third consecutive meal refusal; (3) the command’s investigation and communication with medical sta as needed; and (4) a conference including the health services administrator and the chief or deputy chief of corrections about the best course of action. The Estate nds the policy lacking in some respects, including the timing of noti cation and consultation, follow-up procedures if the hunger strike continues, methods to review past suicidality, and guidance on what to look for and how to document an inmate’s condition on suicide watch. The Estate’s concerns may be valid, but it has not shown that the Sheri was deliberately indi erent in enacting this No. 17-1603 9 policy. Though hunger strikes may be common in jails, as amici suggest, Gomes went longer without food and water than anyone else in the Jail’s experience. This does not give the Sheri a free pass, since a single incident can be enough for liability where a constitutional violation was highly foreseeable. Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 929 (7th Cir. 2004) (rejecting the notion of a “‘one free suicide’ pass”). But this is not a case in which the Jail knew that hunger strikes were a risk yet did nothing. It had a system in place, and that system included a series of reasonable measures. The Estate presented no evidence that would allow a trier of fact to conclude that some feature in the Jail’s policy caused Gomes’s death. Once Jail sta learned about her refusal to eat or drink, they stayed in regular communication with CCS’s medical personnel. See Belbachir v. Cnty. of McHenry, 726 F.3d 975, 983 (7th Cir. 2013). It is unclear whether anyone connected the dots between Gomes’s suicidal statements in October and her condition in December, but that is irrelevant because sta identi ed Gomes as actively suicidal almost from the start of her second detention. There is no reason to think that additional guidance in the hunger-strike policy would have made a di erence in Gomes’s deterioration. Summary judgment was appropriate on this Monell claim. C We can be brief with the Estate’s complaint that the County defendants failed to comply with their international treaty obligations. Article 36 of the Vienna Convention guarantees a foreign national the right to have her home country’s consular o ce noti ed when she is detained. Vienna Convention on Consular Relations, art. 36, Apr. 24, 1963, 21 U.S.T. 77; Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). 10 No. 17-1603 When Gomes, an Indian national, was detained in October, ICE o cials informed her of her Article 36 rights. No one repeated this advice when Gomes was taken back into custody in December. Still, we think summary judgment is appropriate, though for reasons di erent from those mentioned by the district court. The district court was concerned that the Estate failed to mention section 1983 when raising this claim, see Jogi v. Voges, 480 F.3d 822, 825 (7th Cir. 2007) (Jogi II), but “complaints need not plead legal theories,” and so that alone does not support dismissal, see id. at 826. Another strike against the Estate, according to the district court, was the lack of evidence connecting Gomes’s death with the failure to notify. Indeed, when given the opportunity to speak with the Indian consulate in October, Gomes chose not to do so. Nonetheless, we have yet to explore the question whether a plainti is required to show actual harm in order to recover for an Article 36 violation, or if this is more in the nature of a failure to receive required Miranda warnings. We need not wrestle with that issue now, however, because our case is easily resolved on the more straightforward ground of quali ed immunity. The County o cials are immune from suit if it was not clearly established in 2011 that their conduct violated the Vienna Convention. See Pearson v. Callahan, 555 U.S. 223, 245 (2009). Article 36 charges “competent authorities” with notifying foreign nationals. The term “competent authorities” includes booking o cers. Mordi v. Zeigler, 770 F.3d 1161, 1166–1167 (7th Cir. 2014). Consistent with this precedent, the Jail’s written policy places the noti cation obligation exclusively with booking o cers. But the Estate did not sue the o cer who booked Gomes. And, as we No. 17-1603 11 acknowledged in 2014, the boundaries of who else might qualify as a competent authority have “yet to be xed.” Mordi, 770 F.3d at 1167. Because it was not clearly established who, beyond the booking o cer, had a duty to inform Gomes of her consular rights, the County defendants are entitled to quali ed immunity. D The Estate also seeks to reinstate a Monell claim based on the County’s alleged failure to train Jail sta to notify detainees of their consular rights. A failure-to-train claim is actionable only if the failure amounted to deliberate indi erence to the rights of others. City of Canton v. Harris, 489 U.S. 378, 388 (1989). Deliberate indi erence exists where the defendant (1) failed “to provide adequate training in light of foreseeable consequences”; or (2) failed “to act in response to repeated complaints of constitutional violations by its o cers.” Sornberger v. City of Knoxville, 434 F.3d 1006, 1029–30 (7th Cir. 2006). In essence, the defendant must have actual or constructive notice of a problem. See Robles v. City of Fort Wayne, 113 F.3d 732, 735 (7th Cir. 1997). Here, Sheri Curran had neither. The Estate points to no evidence indicating that detainees repeatedly complained about the absence of consular noti cation. The parties try to paint the problem as rampant or nonexistent, but the record does not support either extreme. Sheri Curran did not fail to act in the face of foreseeable violations. Lake County Jail has had a policy about consular noti cation since at least October 2005. In addition to requiring booking o cers to inform detainees, the policy speci ed that all o cers who work at the booking desk “shall receive 12 No. 17-1603 appropriate training,” including a video, handouts, and a training session. Sheri Curran testi ed that he knew about this policy and was never noti ed that it was not being followed. Thus, at most, Sheri Curran was negligent in failing to ensure that the Jail’s training protocol was being implemented. This is not enough to establish that he was deliberately indi erent to detainees’ rights. See Rice, 675 F.3d at 675 (requiring that “the failure to train re ect[] a conscious choice among alternatives”). The Sheri did not display deliberate indi erence, and so we need not consider the County defendants’ alternative arguments. III We turn now to the Estate’s claims against Drs. Elazegui and Singh, which the district court partially blocked on the ground that there was not enough evidence of causation to reach the jury. Though the Estate assigns error to the court’s ruling on a motion in limine and its jury instruction, we need reach these decisions only if we reverse on causation. This is because neither ruling prejudiced the Estate on the claim that did go to the jury. Under the single recovery rule, defendants are jointly and severally liable for the full amount of compensatory damages that result from an indivisible harm; a plainti can recover only once for those damages. Janusz v. City of Chi., 832 F.3d 770, 774, 777 (7th Cir. 2016); Minix v. Canarecci, 597 F.3d 824, 829–30 (7th Cir. 2010). The Estate has already been fully compensated for Gomes’s su ering at the Jail, since Bibbiano paid the assessed $119,000. It has not, however, received any compensation for Gomes’s death. We thus turn to the question whether that issue too should have gone to the jury. No. 17-1603 13 A The court granted judgment as a matter of law on the Estate’s constitutional and state-law wrongful death claims against Drs. Elazegui and Singh because it thought that no rational jury could conclude that their actions caused Gomes’s death. It identi ed two evidentiary gaps: rst, the lack of expert testimony explaining what the notation of “Complications of Starvation and Dehydration” in the autopsy report meant and how those complications related to Gomes’s death; and second, the lack of expert testimony about what took place during the ve days between Gomes’s transfer to the hospital and her death. We consider this decision de novo. Holder v. Ill. Dep’t of Corr., 751 F.3d 486, 490 (7th Cir. 2014). We start with the Estate’s claim under the Fourteenth Amendment’s Due Process clause for inadequate medical care.1 Although Dr. Elazegui and Dr. Singh were employed by a private company that contracted with Lake County to provide detainees’ medical care, they are considered state actors amenable to suit under section 1983. West v. Atkins, 487 U.S. 42, 54–56 (1988). They are not, however, entitled to quali ed immunity. Petties v. Carter, 836 F.3d 722, 734 (7th Cir. 2016) (en banc). Moreover, they concede both that Gomes’s medical condition was objectively serious and that the evidence would have permitted the jury to conclude the doctors acted with 1 We do so because this was the claim that supports the district court’s subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343; the Estate relied on the court’s supplemental jurisdiction, 28 U.S.C. § 1367, for its state-law theories. It is possible that the alienage branch of diversity jurisdiction may also have existed, see 28 U.S.C. § 1332(a)(2), but this was not explored. 14 No. 17-1603 deliberate indi erence. Our focus is thus exclusively on causation. To recover on its due process claim, the Estate had to present “‘verifying medical evidence’ that the delay” in medical care “caused some degree of harm.” Williams v. Liefer, 491 F.3d 710, 715 (7th Cir. 2007) (citation omitted). It did not, however, bear the burden of proving that but for the medical defendants’ inaction, Gomes would de nitely have lived. It would have been enough for the Estate to show that the resulting harm was a diminished chance of survival. See Murrey v. United States, 73 F.3d 1448, 1453–54 (7th Cir. 1996); Holton v. Mem’l Hosp., 176 Ill. 2d 95, 119 (1997) (recognizing the lost chance doctrine in Illinois). While expert testimony could be used as “verifying medical evidence,” medical records alone could su ce. Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008); Williams, 491 F.3d at 715. The record contains ample evidence from which a jury could infer that Drs. Elazegui and Singh’s inaction diminished Gomes’s chances of survival. First, it shows that she died from starvation and dehydration. Under Illinois law, autopsy reports are prima facie evidence of their ndings and conclusions, including cause of death. 725 ILCS 5/115-5.1. The report here did not mince words about Gomes’s cause of death—“Complications of Starvation and Dehydration”—or her manner of death—“suicide.” The coroner implicitly ruled out the possibility that Gomes died from any hospital-based illnesses or other causes. The report is clear: not eating or drinking caused her death. (Hospital records underscore this conclusion. On the day she arrived at the hospital, Gomes was already experiencing acute liver and renal failure. For present purposes, however, we disregard these records, because they No. 17-1603 15 were excluded from trial at the request of the medical defendants, and the Estate has not challenged that exclusion on appeal.) Moreover, the Estate’s expert witnesses testi ed that the doctors’ failure to transfer Gomes to the hospital sooner allowed her deterioration to reach a dangerous point. Psychiatry expert Dr. James Gilligan repeatedly testi ed that Dr. Singh contributed to Gomes’s death by failing to initiate her transfer from the Jail to the hospital. Furthermore, Dr. Singh (a psychiatrist, recall) knew that Gomes was clinically incompetent, but he took no steps to treat her even though she was endangering her life. Dr. Gilligan concluded that Dr. Singh’s “failure to act … contributed to [Gomes’s] death.” Internal medicine expert Dr. Jack Raba testi ed that Gomes’s pulse on December 25 was an “ominous sign,” raising the possibility of cardiovascular problems, electrolyte or metabolic imbalances, or renal failure. He added that Gomes’s blood pressure clearly indicated dehydration. Dr. Raba said it was “impossible” not to consider that Gomes was starting to show signs of organ failure. These “absolute signs” signaled that Gomes urgently needed to be admitted to a hospital for bloodwork and possibly forced feeding and medication. Dr. Raba concluded that Dr. Elazegui’s failure to intervene “contributed to [Gomes’s] ultimate demise and death.” The prison doctors’ testimony lent support to Dr. Raba’s expert opinion on causation. When Dr. Elazegui spoke with Gomes on December 22, he informed her that starvation risked organ failure and death. He asked to be informed when her weight loss hit 18%, since that number indicates an increased risk of organ failure. Dr. Kim’s testimony was also rel- 16 No. 17-1603 evant to the causation question. When he returned from vacation, he was concerned that Gomes could go into respiratory failure or cardiac arrest at any minute (and unlike the others, he promptly acted on this concern). Taken together, this evidence was enough to support an inference on the jury’s part that the delay in sending Gomes to the hospital resulted in her death, or at least lessened her chance of survival. Our analysis applies with equal force to the Estate’s state malpractice claims. See 740 ILCS 180/1. Under this theory, the Estate had to show that the physicians’ negligent failure to comply with the standard of care proximately caused Gomes’s injury. See Sullivan v. Edward Hosp., 209 Ill. 2d 100, 112 (2004). In Illinois, proximate cause “must be established by expert testimony to a reasonable degree of medical certainty.” Morisch v. United States, 653 F.3d 522, 531 (7th Cir. 2011) (citation omitted). An expert’s opinion on the connection between a delay in treatment and injury must be factually supported in order to be submitted to the jury. Wiedenbeck v. Searle, 385 Ill. App. 3d 289, 293–94 (2008). The proximate-cause inquiry encompasses both cause-infact and legal cause. Palay v. United States, 349 F.3d 418, 432 (7th Cir. 2003). For there to be legal cause, a reasonable person must have been able to foresee that the plainti ’s injury would result from his conduct. Id. For cause-in-fact, the plainti must show that but for the defendant’s conduct, the injury would not have occurred. Id. Again, the injury can be the decedent’s lost chance at survival. Holton, 176 Ill. 2d at 119. A jury would have been permitted to nd legal cause here. By their own admission, Drs. Elazegui and Singh knew that if No. 17-1603 17 Gomes continued to refuse food and uids, she could die. They warned her as much. The record also contained support for cause-in-fact. The experts opined that the medical defendants’ inaction contributed to Gomes’s death. This was not impermissibly conclusory for an expert opinion. See FED. R. EVID. 705; see also Wilson v. Clark, 84 Ill. 2d 186, 196 (1981) (adopting Federal Rule of Evidence 705 for Illinois). The medical defendants are right that an expert’s testimony in a malpractice case cannot be based on “sheer, unsubstantiated speculation.” Wiedenbeck, 385 Ill. App. 3d at 293. But the opinions here su ered from no such aw, and the defendants were free to cross-examine the experts about what led them to draw their conclusions. Wilson, 84 Ill. 2d at 194. Based on Drs. Raba and Gilligan’s expert testimony, a jury could have found that the defendants’ inaction more likely than not contributed to Gomes’s decreased chance of survival and her ultimate death. The Estate is entitled to a new trial in which it can present these arguments to a jury. B Since the Estate is entitled to a new trial against the medical defendants, we will also say a few words about its challenge to the district court’s decision to bar all reference to the theory that the medical defendants violated the Due Process Clause by failing to protect Gomes from harming herself. Our review is for abuse of discretion. Perry v. City of Chi., 733 F.3d 248, 252 (7th Cir. 2013).2 2 Once again, it is worth recalling that a person may recover only once for a given set of injuries. At this stage, however, no one has had any occasion to consider whether state law and federal law overlap so much that the elements supporting each theory are the same, or that full relief could 18 No. 17-1603 The Supreme Court has declared that “competent persons” have a due-process “right to refuse lifesaving hydration and nutrition.” Washington v. Glucksberg, 521 U.S. 702, 723 (1997) (quoting Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990)). But this right does not extend to incarcerated persons who have been deemed incompetent. Freeman v. Berge, 441 F.3d 543, 546 (7th Cir. 2006). For these detainees, jails have a duty “to prevent the prisoner from giving way” to the “unusual psychological strain” caused by incarceration. Id. at 547. We repeatedly have recognized a jail or prison o cial’s failure to protect an inmate from self-harm as one way of establishing deliberate indi erence to a serious medical need. E.g., Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984, 989– 90 (7th Cir. 2012); Collins v. Seeman, 462 F.3d 757, 760–61 (7th Cir. 2006). The obligation to intervene covers self-destructive behaviors up to and including suicide. Rice, 675 F.3d at 665; Cavalieri v. Shepard, 321 F.3d 616, 620–22 (7th Cir. 2003). The duty applies “when suicide takes the form of starving oneself to death.” Freeman, 441 F.3d at 547; accord Rodriguez v. Briley, 403 F.3d 952, 953 (7th Cir. 2005). In barring this theory, the court reasoned that the Estate had not presented evidence that Gomes’s suicidal ideation and mental illness were “so acute” that the defendants should have known about them and protected her from herself. See Seventh Circuit Pattern Civil Jury Instruction 7.19 (rev. 2017) (an element of a failure-to-protect-from-self-harm claim is that the defendant was aware or strongly suspected a strong likelihood of serious self-harm). The court attached particular be recovered under either. Reconciliation of those theories is something better done by the district court on remand. No. 17-1603 19 weight to testimony from Gomes’s family members and the administrator that she was a devout Catholic who had no history of mental illness and would not have committed suicide. In the past, we have taken into account jail o cials’ knowledge of a decedent’s mental health history or warnings from family members, as that information pertains to the defendants’ subjective awareness of a problem. E.g., Payne for Hicks v. Churchich, 161 F.3d 1030, 1042 (7th Cir. 1998). But that is not the use to which the court put the testimony of Gomes’s family. It jumped from the fact that Gomes was a Catholic to an assumption that the defendants were aware of her religious a liation, but there is no evidence that they knew any such thing. Furthermore, mental illness and suicide regrettably a ict devout members of all religious groups. While a jury could consider testimony from Gomes’s family when assessing this theory of recovery, it was not the court’s role to accept the family opinion as an undisputed fact. And in any event, the trial record was lled with evidence supporting a nding that the medical defendants knew that Gomes was at great risk of death by starvation and dehydration, and that she was unable to think rationally. On December 27, Dr. Singh deemed her not competent and concluded that she did not understand the risks of refusing to eat. Before then, CCS sta documented Gomes’s suicidal ideation and placed her on suicide watch. Dr. Elazegui had warned Gomes that if she continued to refuse nutrition, she could die. The defendants’ records reveal that they were aware that Gomes was at serious risk of causing her own death. The district court abused its discretion by prohibiting the Estate from pursuing this line of argument. At the next trial, the Estate must be allowed to argue this theory of recovery to the jury. 20 No. 17-1603 C Finally, we consider whether the district court properly instructed the jury on intent. We evaluate the jury instructions anew when deciding if they accurately state the law. Sanchez v. City of Chi., 880 F.3d 349, 355 (7th Cir. 2018). The Supreme Court rst recognized an incarcerated person’s right to receive adequate medical treatment in Estelle v. Gamble, 429 U.S. 97 (1976), which concerned a convicted prisoner. In that case, the Court concluded that deliberate indifference to a prisoner’s serious medical need violates the Eighth Amendment’s protection against cruel and unusual punishment. Id. at 104–05. The “deliberate indi erence” standard requires a showing that the defendant had a “su ciently culpable state of mind” and asks whether the o cial actually believed there was a signi cant risk of harm. Pittman ex rel. Hamilton v. Cnty. of Madison, 746 F.3d 766, 775–76 (7th Cir. 2014). This subjective standard is closely linked to the language of the Eighth Amendment, which prohibits the in iction of “cruel and unusual punishments.” The Supreme Court has interpreted this to ban only the “unnecessary and wanton in iction of pain.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). The Court has applied the deliberate-indi erence standard not just to medical-care problems, but also to other types of claims. See Farmer, 511 U.S. at 837 (failure-to-protect); Wilson v. Seiter, 501 U.S. 294, 303 (1991) (conditions of con nement). Pretrial detainees stand in a di erent position: they have not been convicted of anything, and they are still entitled to the constitutional presumption of innocence. Thus, the pun- No. 17-1603 21 ishment model is inappropriate for them. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015) (“[P]retrial detainees (unlike convicted prisoners) cannot be punished at all, much less ‘maliciously and sadistically.’” (citations omitted)); Bell v. Wol sh, 441 U.S. 520, 535 (1979) (“For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.”). Yet they also are protected from certain abusive conditions. The di erence is that the claims of state detainees being held on probable cause arise under the Fourteenth Amendment’s Due Process Clause. Collins v. Al-Shami, 851 F.3d 727, 731 (7th Cir. 2017). That said, we have typically assessed pretrial detainees’ medical care (and other) claims under the Eighth Amendment’s standards, reasoning that pretrial detainees are entitled to at least that much protection. E.g., Minix, 597 F.3d at 831; Board v. Farnham, 394 F.3d 469, 477–78 (7th Cir. 2005). In conducting this borrowing exercise, we have grafted the Eighth Amendment’s deliberate indi erence requirement onto the pretrial detainee situation. Cavalieri, 321 F.3d at 620. Missing from this picture has been any attention to the di erence that exists between the Eighth and the Fourteenth Amendment standards. The Supreme Court recently disapproved the uncritical extension of Eighth Amendment jurisprudence to the pretrial setting in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). There the Court held that a pretrial detainee bringing an excessiveforce claim did not need to prove that the defendant was subjectively aware that the amount of force being used was unreasonable. Id. at 2472–73. Rather, the plainti needed only to show that the defendant’s conduct was objectively unreasonable. Id. Kingsley, it is worth emphasizing, was a Fourteenth 22 No. 17-1603 Amendment Due Process case. Indeed, the Court took pains to reiterate the basic principles that apply to pretrial detainees: Several considerations have led us to conclude that the appropriate standard for a pretrial detainee’s excessive force claim is solely an objective one. For one thing, it is consistent with our precedent. We have said that “the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Graham [v. Connor, 490 U.S. 386,] 395, n. 10 [1989]. And in Bell [v. Wol sh, 441 U.S. 520 (1979)], we explained that such “punishment” can consist of actions taken with an “expressed intent to punish.” 441 U.S., at 538. But the Bell Court went on to explain that, in the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not “rationally related to a legitimate nonpunitive governmental purpose” or that the actions “appear excessive in relation to that purpose.” Id., at 561. 135 S. Ct. at 2473 (emphasis added). Though Kingsley’s direct holding spoke only of excessiveforce claims, two of our sister circuits have held that its logic is not so constrained. The Ninth Circuit rst extended Kingsley’s objective inquiry to detainees’ Fourteenth-Amendment failure-to-protect claims. Castro v. Cnty. of L.A., 833 F.3d 1060, 1070–71 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 831 (2017). Since then, that court has applied the Kingsley holding more broadly to a medical-need claim brought by a pretrial detainee. Gordon v. Cnty. of Orange, 888 F.3d 1118, 1120, 1122– 25 (9th Cir. 2018). The Second Circuit followed suit, applying No. 17-1603 23 the objective standard to detainees’ Fourteenth-Amendment complaints about their conditions of con nement; in the process it overruled a decision applying a subjective test to a medical-care claim. Darnell v. Pineiro, 849 F.3d 17, 34–35 (2d Cir. 2017) (overruling Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009)); see Wilson, 501 U.S. at 303 (medical care is a condition of con nement). Later, the Second Circuit expressly applied an objective standard to a claim of deliberate indi erence to a serious medical condition. Bruno v. City of Schenectady, No. 16-1131, 2018 WL 1357377, at *2–*3 (2d Cir. Mar. 16, 2018) (unpublished) (asking “whether a ‘reasonable person’ would appreciate the risk to which the detainee was subjected”). Other courts of appeals have contemplated the same reading of Kingsley. Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018) (not applying Kingsley, which neither party raised, but recognizing the “shift in Fourteenth Amendment deliberate indi erence jurisprudence [that] calls into serious doubt whether [the plainti ] need even show that the individual defendant-o cials were subjectively aware of her serious medical conditions and nonetheless wantonly disregarded them”). The Eighth, Eleventh, and Fifth Circuits have chosen to con ne Kingsley to its facts—that is, to Fourteenth-Amendment claims based on excessive-force allegations in a pretrial setting. E.g., Whitney v. City of St. Louis, 887 F.3d 857, 860 n.4 (8th Cir. 2018); Dang by & through Dang v. Sheri , Seminole Cnty., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017); Alderson v. Concordia Parish Corr. Facility, 848 F.3d 415, 419 n.4 (5th Cir. 2017) (following circuit precedent and concluding that the issue was not directly raised). It is worth noting, however, that a concurring judge in Alderson advocated reconsideration of the 24 No. 17-1603 subjective standard to detainees’ other claims in light of Kingsley. Id. at 424–25 (Graves, J., specially concurring in part). Some circuits have continued to analyze inadequate medical treatment claims under the deliberate indi erence standard without grappling with the potential implications of Kingsley. E.g., Du v. Potter, 665 F. App’x 242, 244–45 (4th Cir. 2016) (applying the objective reasonableness standard to a detainee’s excessive-force claim but not his medical-need claim, which it a rmed on forfeiture grounds). We have not yet expressly weighed in on the debate. Since Kingsley, we have continued to duplicate the Eighth Amendment inquiry for claims of de cient medical treatment. E.g., Phillips v. Sheri of Cook Cnty., 828 F.3d 541, 554 n.31 (7th Cir. 2016). But we have acknowledged that Kingsley has “called into question” our case law treating the “protections a orded by” the Eighth and Fourteenth Amendments as “‘functionally indistinguishable’ in the context of a claim about inadequate medical care.” Smego v. Jumper, 707 F. App’x 411, 412 (7th Cir. 2017); accord Collins, 851 F.3d at 731. Because the answer may make a di erence in the retrial of Gomes’s claims, we think it appropriate to address the proper standard at this time. We begin with the fact that the Supreme Court has been signaling that courts must pay careful attention to the di erent status of pretrial detainees. In this respect, Kingsley does not stand alone. See, e.g., Manuel v. City of Joliet, 137 S. Ct. 911 (2017) (allowing Fourth Amendment challenges to pretrial detention even beyond the start of legal process). The Court has cautioned that the Eighth Amendment and Due Process analyses are not coextensive. See Kingsley, 135 S. Ct. at 2475 (“The language of the two Clauses di ers, and the nature of the claims often di ers.”); Currie v. Chhabra, No. 17-1603 25 728 F.3d 626, 630 (7th Cir. 2013) (“[D]i erent constitutional provisions, and thus di erent standards, govern depending on the relationship between the state and the person in the state’s custody.”). We see nothing in the logic the Supreme Court used in Kingsley that would support this kind of dissection of the di erent types of claims that arise under the Fourteenth Amendment’s Due Process Clause. To the contrary, the Court said that “[t]he language of the [Eighth and Fourteenth Amendments] di ers, and the nature of the claims often differs. And, most importantly, pretrial detainees (unlike convicted prisoners) cannot be punished at all, much less ‘maliciously and sadistically.’” 135 S. Ct. at 2475 (citations omitted). We thus conclude, along with the Ninth and Second Circuits, that medical-care claims brought by pretrial detainees under the Fourteenth Amendment are subject only to the objective unreasonableness inquiry identi ed in Kingsley. Although the defendants failed to mention Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330–31 (1986), and thus have forfeited any argument based on that case, we see nothing in Parratt that points in the opposite direction. There the Supreme Court held that plainti s may not bring claims under the Due Process Clause where state law provides an adequate remedy. 451 U.S. at 543–44. Though the Estate has brought state malpractice claims in addition to its due-process claim, the availability of parallel and even overlapping forms of recovery does not doom its constitutional claim. See Zinermon v. Burch, 494 U.S. 113, 124 (1990); Armstrong v. Daily, 786 F.3d 529, 539 (7th Cir. 2015). Parratt applies only to certain procedural-due-process claims. The violation of which the Estate complains derives from the substantive aspect of the Due Process Clause. See Youngberg v. Romeo, 457 U.S. 307, 315–16 26 No. 17-1603 (1982); see also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir. 1998). In this situation, there is no amount of process that would justify a decision to sit by and leave serious medical needs unattended. Parratt is thus beside the point. We also see no con ict between this application of Kingsley and the Supreme Court’s later decision in Daniels v. Williams, 474 U.S. 327 (1986). Daniels overruled part of Parratt and held (or underscored) that negligent conduct does not o end the Due Process Clause. Id. at 330–31. The defendants here worry that an objective-reasonableness standard will impermissibly constitutionalize medical malpractice claims, because it would allow mere negligence to su ce for liability. A careful look at Kingsley, however, shows that this is not the case; the state-of-mind requirement for constitutional cases remains higher. Here is what the Court had to say about this problem in Kingsley: We consider a legally requisite state of mind. In a case like this one, there are, in a sense, two separate stateof-mind questions. The rst concerns the defendant’s state of mind with respect to his physical acts—i.e., his state of mind with respect to the bringing about of certain physical consequences in the world. The second question concerns the defendant’s state of mind with respect to whether his use of force was “excessive.” Here, as to the rst question, there is no dispute. As to the second, whether to interpret the defendant’s physical acts in the world as involving force that was “excessive,” there is a dispute. We conclude with respect to that question that the relevant standard is objective No. 17-1603 27 not subjective. Thus, the defendant’s state of mind is not a matter that a plainti is required to prove. 135 S. Ct. at 2472. As applicable here, the rst of those inquiries asks whether the medical defendants acted purposefully, knowingly, or perhaps even recklessly when they considered the consequences of their handling of Gomes’s case. See id. at 2472, 2474 (discussing purposeful or knowing conduct and leaving open the possibility that recklessness would also suf ce). The courts of appeals that have applied Kingsley to detainees’ claims in contexts other than excessive force have taken that step, while continuing to recognize that it will not be enough to show negligence or gross negligence. Gordon, 888 F.3d at 1125 (under Kingsley, a detainee must “prove more than negligence but less than subjective intent—something akin to reckless disregard” (quoting Castro, 833 F.3d at 1071)); accord Darnell, 849 F.3d at 36 & n.16. As Kingsley instructs, the second step is the objective one. The allegations here easily t the mold of Gordon, Darnell, and Castro. A properly instructed jury could nd that Drs. Elazegui and Singh made the decision to continue observing Gomes in the jail, rather than transporting her to the hospital, with purposeful, knowing, or reckless disregard of the consequences. (The jury could also reject such a conclusion.) It would be a di erent matter if, for example, the medical defendants had forgotten that Gomes was in the jail, or mixed up her chart with that of another detainee, or if Dr. Elazegui forgot to take over coverage for Dr. Kim when he went on vacation. Such negligence would be insu cient to support liability under the Fourteenth Amendment, even though it might support state-law liability. Here, there is evidence that Drs. Elazegui and Singh deliberately chose a “wait 28 No. 17-1603 and see” monitoring plan, knowing that Gomes was neither eating nor drinking nor competent to care for herself. See Glisson, 849 F.3d at 380, 382 (recognizing inaction as a choice). Because the Estate does not claim merely negligent conduct, a jury must decide whether the doctors’ deliberate failure to act was objectively reasonable. IV Any death is a great loss, but one as preventable as Gomes’s is especially disturbing. On this record, a jury could have found that the intentional and knowing inaction of Drs. Elazegui and Singh caused Gomes’s death. We therefore REVERSE and REMAND for new trial of the Estate’s claim against them, as it relates to Gomes’s death. We AFFIRM the district court’s grant of summary judgment to the County defendants.
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