Barnes v. Anyanwu

391 F. App'x 549
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 28, 2010
DocketNo. 09-2983
StatusPublished
Cited by7 cases

This text of 391 F. App'x 549 (Barnes v. Anyanwu) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnes v. Anyanwu, 391 F. App'x 549 (7th Cir. 2010).

Opinion

ORDER

Joseph Barnes, an Illinois prisoner, thought he had hepatitis and wanted to be tested. He made several requests and filed several grievances at the prison. All were denied. One of his grievances was denied by Dr. Jovita Anyanwu, the prison’s acting medical director. Believing that denial caused him emotional distress, Barnes sued the doctor for negligent infliction of emotional distress. The district court granted summary judgment for the doctor, concluding that because the emotional distress did not accompany any physical impact Barnes could not prevail. Because in three previous cases we have upheld the reasoning used by the district court and we find no reason to break from that reasoning, we affirm.

I.

In August 1999, Joseph Barnes was concerned that he had contracted hepatitis, and he wanted to be tested. Several times he asked the nurses and doctors at the prison to test him, but his requests were denied; he then filed several grievances. In response to one of the grievances, Dr. Anyanwu, a medical supervisor at the prison, denied Barnes’s grievance and told him to follow the proper sick-call procedures.

After repeatedly seeking and being denied a hepatitis test, Barnes filed suit under § 1983 for deliberate indifference against the warden, a nurse, and another doctor at the prison, but not against Any-[551]*551anwu. Barnes was eventually tested, and it turned out that he did, in fact, have hepatitis. He was treated, and we’re told that he is now cured. Despite being treated and cured, Barnes continued to pursue his suit.

The district court initially dismissed the suit for Barnes’s failure to exhaust his administrative remedies, but on appeal we reversed and remanded it for further proceedings. Barnes v. Briley, 420 F.3d 673 (7th Cir.2005). At some point in the litigation, Barnes amended his complaint, alleging a negligent infliction of emotional distress claim under Illinois law and a deliberate-indifference claim against Anyan-wu. Both claims were premised on Any-anwu’s denying Barnes’s grievance and instructing him to follow the prison’s sick-call procedures. Barnes eventually settled with the other defendants but continued to pursue his claims against Anyan-wu.

Anyanwu moved for summary judgment on both claims. Barnes conceded that he could not recover on his deliberate indifference claim, but contested summary judgment on the state-law claim. Barnes did not allege that the Anyanwu ever performed a botched medical procedure, just that Anyanwu denied his grievance and told him to follow the sick-call procedures. Relying on our precedent, the district court granted summary judgment for Anyanwu. It held that because Illinois requires direct victims to establish an impact, i.e., “a contemporaneous physical injury or impact” in these cases, Barnes cannot recover.

On appeal, Barnes argues that Illinois courts have interpreted the “impact rule” inconsistently and, given the nature of doctor-patient relationships, that we should carve out an exception to it for medical malpractice cases. In the alternative, he asks that we certify the question to the Illinois Supreme Court.

II.

We review de novo the district court’s grant of summary judgment. Knight v. Wiseman, 590 F.3d 458, 462 (7th Cir.2009). Summary judgment is proper where “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c)(2). And when sitting in diversity, we apply state substantive law. Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 634 (7th Cir.2007). Here, the parties agree that Illinois law governs.

As an initial matter, it is questionable whether this is a medical malpractice case. In Illinois to recover in a medical malpractice case, a plaintiff must prove a duty owed by the defendant physician, a breach of that duty, an injury proximately caused by the breach, and resultant damages. Smith v. Pavlovich, 394 Ill.App.3d 458, 333 Ill.Dec. 446, 914 N.E.2d 1258, 1266 (2009). A physician’s duty is limited to those situations where a direct physician-patient relationship exists. And that “relationship cannot be established where a patient does not seek that physician’s medical advice and the physician does not knowingly accept that person as a patient.” Siwa v. Koch, 388 Ill.App.3d 444, 327 Ill.Dec. 787, 902 N.E.2d 1173, 1176 (2009). Here, Any-anwu was merely acting as a hospital administrator when he denied Barnes’s grievance; he was not acting as a physician and certainly not Barnes’s treating physician. From the record, there was no relationship between the two that would make this a medical malpractice case. Putting that issue to the side for a moment, we first consider Illinois law governing negligent infliction of emotional distress.

[552]*552Before 1983, in all cases of negligent infliction of emotional distress, Illinois courts adhered to the “impact rule.” Under it, recovery was tied to whether the emotional distress accompanied a contemporaneous physical injury or impact to the plaintiff. Hayes v. Illinois Power Co., 225 Ill.App.3d 819, 167 Ill.Dec. 290, 587 N.E.2d 559, 561 (1992). But then the Illinois Supreme Court adopted a new standard for cases involving bystanders called “the zone of physical danger rule.” Rickey v. Chicago Transit Author., 98 Ill.2d 546, 75 Ill.Dec. 211, 457 N.E.2d 1, 5 (1983). Basically, after Rickey, victims of negligent infliction of emotional distress were put in two categories: direct victims and bystanders. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702 (7th Cir.2009). Direct victims are the persons that the negligent conduct has directly affected; they are the ones that are actually physically injured by the defendant’s negligent conduct. To fall in this category the plaintiff must suffer some contemporaneous physical contact that caused the emotional distress. Meanwhile, bystanders are those who are in the zone-of-physical danger and who because of the defendant’s negligence fear for their own safety, which caused them emotional distress and a physical injury or illness from the emotional distress. Rickey, 75 Ill.Dec. 211, 457 N.E.2d at 5.

Under the rubric in Rickey, bystanders don’t have to suffer a physical impact or injury at the time of the negligent act, but they must have been in such proximity to the accident that there was a high risk and fear of physical impact to them. Id. And — and this is an important “and”— bystanders must show a “physical injury or illness as a result of the emotional distress caused by the defendant’s negligence.” Id. The decision in Rickey did not discard the impact rule for direct victims of negligent infliction of emotional distress. It only concerned bystanders. Hayes, 167 Ill.Dec.

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391 F. App'x 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-anyanwu-ca7-2010.