Billie Thompson v. Lance Cope

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-3060

BILLIE THOMPSON, as personal representative of the ESTATE OF

DUSTY HEISHMAN,

Plaintiff-Appellee,

v.

LANCE COPE,

Defendant-Appellant.

____________________

No. 18-1223

BILLIE THOMPSON, as personal representative of the ESTATE OF

DUSTY HEISHMAN,

Plaintiff-Appellee,

v.

LANCE COPE and HEALTH AND HOSPITAL CORPORATION OF

MARION COUNTY,

Defendants-Appellants.

____________________

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 15-CV-1712 — Tanya Walton Pratt, Judge.

____________________

2 Nos. 17-3060 & 18-1223

ARGUED MAY 31, 2018 — DECIDED AUGUST 14, 2018

____________________

Before FLAUM, MANION, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. We address here two interlocu-

tory appeals in a case stemming from the death of Dusty

Heishman. In Indianapolis in October 2014, Heishman was

high on amphetamines and running around naked in the

street. Police responded and tried to subdue him. A para-

medic arrived on the scene and administered a sedative to

Heishman so he could be moved to an ambulance to be taken

to an arrestee holding room at a hospital. Soon, Heishman’s

heart and breathing stopped. Despite efforts to revive him, he

died several days later.

Heishman’s estate sued, asserting federal Fourth Amend-

ment claims and state-law tort claims. The district court de-

nied qualified immunity to the paramedic on the excessive

force claim. The court also allowed all but one of the state-law

claims to proceed against the paramedic and the hospital

without requiring the plaintiff estate to comply with the Indi-

ana Medical Malpractice Act, Ind. Code § 34-18-1-1 et seq. The

denial of qualified immunity is appealable as to legal issues,

and the district court certified for interlocutory appeal under

28 U.S.C. § 1292(b) the state-law question whether the estate’s

claims are covered by the Indiana Medical Malpractice Act.

We reverse as to both issues. The paramedic is entitled to

qualified immunity on the excessive force claim. Case law did

not (and does not) clearly establish that a paramedic can vio-

late a patient-arrestee’s Fourth Amendment rights by exercis-

ing medical judgment to administer a sedative in a medical

Nos. 17-3060 & 18-1223 3

emergency. All of the state-law claims are subject to the sub-

stantive terms of Indiana’s Medical Malpractice Act, includ-

ing damage caps and the requirement to submit the claim to

a medical review panel before suit is filed. The undisputed

facts show that the paramedic was exercising medical judg-

ment in dealing with a patient in a medical emergency.

I. Factual and Procedural Background

The district court stated the relevant facts in its summary

judgment order. Thompson v. City of Indianapolis, 2017 WL

4248006, at *1–3 (S.D. Ind. Sept. 25, 2017). “Our review on ap-

peal from denial of summary judgment based on qualified

immunity is limited to questions of law, so we recount the

facts as stated by the district court in its assessment of the

summary judgment record.” Estate of Clark v. Walker, 865 F.3d

544, 547 (7th Cir. 2017), citing Locke v. Haessig, 788 F.3d 662,

665 (7th Cir. 2015); see also Stinson v. Gauger, 868 F.3d 516,

522–28 (7th Cir. 2017) (en banc) (no jurisdiction over appeal of

denial of qualified immunity where defendants challenged

facts and inferences on appeal).

On October 5, 2014, paramedic Lance Cope was dis-

patched to the south side of Indianapolis for an animal bite.

When he arrived, he learned that the bite was not from an an-

imal but from a man, Dusty Heishman. Before Cope could

treat the bite patient, an Indianapolis police officer ap-

proached Cope and said he needed him to “take a look” at

Heishman, who “was being combative.”

Heishman was naked and lying prone in the middle of the

street. His hands were cuffed behind his back and his ankles

were shackled together. He had been tased by a police officer

and had been punched and choked in a physical struggle with

4 Nos. 17-3060 & 18-1223

two civilians who helped the officer wrestle Heishman to the

ground.

The police had responded to a report that Heishman was

naked, belligerent, and roaming the neighborhood. The re-

sponding officer noticed that Heishman was sweating pro-

fusely and appeared to be on drugs. Heishman approached

the officer’s vehicle despite the officer’s oral commands to

calm down and sit down on the ground. The officer tased

Heishman, but Heishman pulled the wires out of the taser,

jumped back onto his feet, and tried to get into the officer’s

car. Despite oral commands to calm down or sit down, Heish-

man stared through the officer and repeatedly said “they’re

trying to kill me, they’re trying to kill me.” After more officers

arrived, they tried to put Heishman in the back of a police

transport wagon. Heishman resisted and knocked the officers

off balance, but the officers ultimately got Heishman back on

the ground and held him there. Heishman was still struggling

and fighting the officers who were holding him down. That

was the scene when paramedic Cope arrived.

Cope assessed Heishman. After checking Heishman’s air-

way, breathing, and pulse, he suspected Heishman was on

amphetamines. The district court relied on Cope’s report

(which is consistent with his deposition testimony), which

said he injected Heishman with a sedative, Versed, as a

“chemical restraint for patient and crew safety.” While the

sedative took effect, Cope visually monitored Heishman by

watching his breathing and watching for any struggling.

Cope did not use medical equipment to monitor Heishman’s

vital signs. The medics and the officers picked Heishman up,

laid him on his back on a cot, covered him with a blanket, and

moved him toward a waiting ambulance.

Nos. 17-3060 & 18-1223 5

The darkness (it was after 8:00 p.m. on an October night)

made it difficult for Cope to make an assessment. But once

Heishman was in the ambulance, Cope saw that Heishman

was not breathing and found he had no pulse. Seven minutes

of CPR restored Heishman’s heartbeat and breathing, but he

remained unconscious. Heishman lost brain function and

died eight days later.

Heishman’s estate sued Cope, the Health and Hospital

Corporation of Marion County (“the hospital”), and other de-

fendants in state court. The estate brought claims under 42

U.S.C. § 1983 against Cope in his individual and official ca-

pacities for excessive force, deliberate indifference, and failure

to protect/intervene. The estate also brought six state-law

claims against Cope, the hospital, or both: wrongful death,

damages resulting from injuries sustained before Heishman’s

death, intentional infliction of emotional distress, negligent

infliction of emotional distress, negligence, and battery. The

defendants removed the case to federal court based on fed-

eral-question jurisdiction over the constitutional claims, with

supplemental jurisdiction over the state-law claims.

Cope and the hospital moved to dismiss the state-law

claims for what they called lack of subject-matter jurisdiction,

arguing that Indiana’s Medical Malpractice Act required the

estate to take those claims before a medical review panel be-

fore filing suit. The district court dismissed the wrongful

death claim against the hospital but denied the motion with

respect to the other state-law claims. Thompson v. City of Indi-

anapolis, 2016 WL 4541434, at *4 (S.D. Ind. Aug. 31, 2016). The

defendants moved to reconsider, and the district court denied

the motion. Thompson v. City of Indianapolis, 2017 WL 4155224

6 Nos. 17-3060 & 18-1223

(S.D. Ind. Sept. 19, 2017). The district court certified for inter-

locutory appeal the question whether the Medical Malprac-

tice Act applied to the estate’s state-law claims. Thompson v.

Burnett, 2017 WL 6606536 (S.D. Ind. Dec. 27, 2017), which we

agreed to accept under 28 U.S.C. § 1292(b).

Cope moved for summary judgment on the federal consti-

tutional claims. The district court granted the motion on the

official-capacity claims and the claims against Cope for delib-

erate indifference and failure to protect/intervene, but denied

it on the excessive force claim against Cope in his individual

capacity. Thompson, 2017 WL 4248006, at *4–10. Cope ap-

pealed, and we consolidated that appeal with the interlocu-

tory appeal on the state malpractice issue.

II. Analysis

A. Limits of Jurisdiction Over Denial of Qualified Immunity

Denials of summary judgment are usually treated as un-

appealable interlocutory orders. Estate of Clark, 865 F.3d at

549, citing 28 U.S.C. § 1291, and Ortiz v. Jordan, 562 U.S. 180,

188 (2011). When qualified immunity is denied for legal rea-

sons, however, the collateral-order doctrine gives us jurisdic-

tion over the legal issue. Id., citing Mitchell v. Forsyth, 472 U.S.

511, 530 (1985); see also Green v. Newport, 868 F.3d 629, 632

(7th Cir. 2017) (we may consider such appeals to extent that

defendant public official presents an “abstract issue of law”

such as “whether the right at issue is clearly established or

whether the district court correctly decided a question of

law”), quoting Huff v. Reichert, 744 F.3d 999, 1004 (7th Cir.

2014).

In such appeals, we lack jurisdiction over factual disputes.

Estate of Clark, 865 F.3d at 549, citing Johnson v. Jones, 515 U.S.

Nos. 17-3060 & 18-1223 7

304, 319–20 (1995), and Locke, 788 F.3d at 665. We must take

the facts as the district court assumed them or accept the

plaintiff’s version of the facts, White v. Gerardot, 509 F.3d 829,

833 (7th Cir. 2007), but we can also look to undisputed evi-

dence even if the district court did not consider it. Id. at 833

n.5, citing Washington v. Haupert, 481 F.3d 543, 549 & n.2 (7th

Cir. 2007). If the appellant challenges the facts or inferences

drawn from them, we lack jurisdiction over that challenge.

E.g., Hurt v. Wise, 880 F.3d 831, 839–40 (7th Cir. 2018) (defend-

ants challenged inferences drawn from recorded interroga-

tions); Stinson, 868 F.3d at 522–28 (defendants failed to take

plaintiffs version of facts as true); Gutierrez v. Kermon, 722 F.3d

1003, 1008–14 (7th Cir. 2013) (defendants’ argument de-

pended upon disputed fact); Whitlock v. Brueggemann, 682

F.3d 567, 573–75 (7th Cir. 2012) (defendants essentially argued

there was no genuine issue of fact).

The district court held here that Cope acted in a law-en-

forcement capacity because he assisted the officers “in effec-

tuating Heishman’s arrest, not rendering emergency medical

services.” Thompson, 2017 WL 4248006, at *6, citing Thompson,

2016 WL 4541434, and Thompson, 2017 WL 4155224. Assuming

that the role or capacity in which paramedic Cope acted when

he administered the sedative is an issue of fact, see McKenna

v. Edgell, 617 F.3d 432, 439 (6th Cir. 2010) (whether police of-

ficers acted in medical role was issue of fact), we lack jurisdic-

tion to review that finding by the district court. The appellants

argue that undisputed facts require the opposite conclusion

because Cope assessed Heishman, thought he was under the

influence of drugs and in a state of excited delirium (which is

a medical emergency), and decided independently to admin-

ister the sedative. The district court considered those facts and

said that they did “not negate the overarching fact that Medic

8 Nos. 17-3060 & 18-1223

Cope was asked by law enforcement officers to assist them in

dealing with a combative, resisting arrestee.” Thompson, 2017

WL 4155224, at *5. The appellants repeatedly challenge the

district court’s inference, but in this interlocutory appeal, we

cannot “revisit the inferences that the district court found

could reasonably be drawn.” Hurt, 880 F.3d at 839. In essence,

the appellants challenge the sufficiency of the evidence. They

argue that the evidence is insufficient to support the district

court’s conclusion that Cope helped officers arrest Heishman.

That looks like “a back-door effort to contest the facts,” Jones

v. Clark, 630 F.3d 677, 680 (7th Cir. 2011), but we need not de-

cide that issue definitively. We have jurisdiction to decide the

appeal on a different issue of law.

B. Denial of Qualified Immunity

When a district court denies summary judgment based on

qualified immunity, our review of legal issues is both permit-

ted and de novo. Estate of Clark, 865 F.3d at 549, citing Levin v.

Madigan, 692 F.3d 607, 622 (7th Cir. 2012). “Qualified immun-

ity ‘protects government officials from liability for civil dam-

ages insofar as their conduct does not violate clearly estab-

lished statutory or constitutional rights of which a reasonable

person would have known.’” Id. at 549–50 (internal quotation

marks omitted), quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009). The qualified immunity analysis at summary judg-

ment is a two-step inquiry: “(1) whether the facts, taken in the

light most favorable to the plaintiff, show that the defendant

violated a constitutional right; and (2) whether the constitu-

tional right was clearly established at [that] time.” Estate of

Clark, 865 F.3d at 550, quoting Gonzalez v. City of Elgin, 578

F.3d 526, 540 (7th Cir. 2009). We have discretion to decide

which prong to address first. Pearson, 555 U.S. at 236. If the

Nos. 17-3060 & 18-1223 9

answer to either question is no, the defendant official is enti-

tled to summary judgment. Gibbs v. Lomas, 755 F.3d 529, 537

(7th Cir. 2014).

1. Step 1: Violation of a Constitutional Right

The plaintiff estate has not cited any cases holding that a

paramedic could violate a patient’s Fourth Amendment rights

by rendering medical treatment. We have found just two

opinions allowing such cases to go forward. E.g., Estate of

Barnwell v. Roane County, 2016 WL 5937821, at *6–7 (E.D. Tenn.

June 16, 2016) (denying qualified immunity on excessive force

claim against paramedics who administered paralytic be-

cause fact issues existed regarding medical necessity of seda-

tion and paramedics’ intent where plaintiff’s expert opined

there was no medical reason to paralyze decedent’s lungs),

appeal dismissed in part sub nom. Estate of Barnwell v. Grigsby,

681 F. App’x 435, 442 (6th Cir. 2017); Haas v. County of El Do-

rado, 2012 WL 1414115, at *4–10 (E.D. Cal. Apr. 23, 2012)

(denying motion to dismiss and denying qualified immunity

to paramedics on excessive force claim where police officers

allegedly ordered paramedics to inject tranquilizer into con-

scious patient who declined treatment). Given the undisputed

facts here, we doubt that the reasoning of those cases applies.

In any event, the second prong of the qualified immunity

analysis is dispositive here, so we decline to decide the first.

E.g., Green, 868 F.3d at 633.

2. Step 2: Clearly Established Law

We have appellate jurisdiction to review the legal issue at

the second step of qualified immunity analysis: whether the

constitutional right that Heishman’s estate asserts was clearly

established at the time Cope administered the sedative.

10 Nos. 17-3060 & 18-1223

Clearly established law “must be ‘particularized’ to the

facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017),

quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987). In

other words, “existing precedent must have placed the statu-

tory or constitutional question beyond debate.” Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011), citing Anderson, 483 U.S. at 640,

and Malley v. Briggs, 475 U.S. 335, 341 (1986).1 The Supreme

Court has also taught that the issue is whether the state of the

law at the time of a defendant’s actions would have given the

defendant “fair warning” that her conduct was unconstitu-

tional. Hope v. Pelzer, 536 U.S. 730, 741 (2002). In Hope, the

Court denied qualified immunity and held that handcuffing a

prisoner to a hitching post violated clearly established law.

Hope teaches that a case directly on point is not required. Id.

1 Scholars have criticized this standard. See, e.g., Brief for Scholars of

the Law of Qualified Immunity as Amici Curiae Supporting Petitioner at

3–4, Almighty Supreme Born Allah v. Milling (No. 17-8654), 2018 WL

3388318, at *3–4 (“Current doctrine thus forces § 1983 plaintiffs to thread

a narrowing gap: to find ‘existing precedent’ that puts ‘the statutory or

constitutional question beyond debate,’ Mullenix, 136 S. Ct. at 308 (emphasis

added) (quoting al-Kidd, 563 U.S. at 741), while the Court has all but halted

the development of new precedents to rely on in the future.”); see also

Thompson v. Clark, — F. Supp. 3d —, —, 2018 WL 3128975, at *6–13

(E.D.N.Y. June 26, 2018) (Weinstein, J.) (discussing doctrinal criticisms and

developments and denying qualified immunity where “precedent and

policy rationale fail to justify an expansive regime of immunity that would

prevent plaintiff from proving a serious constitutional violation”), citing

Michael Silverstein, Note, Rebalancing Harlow: A New Approach to Qualified

Immunity in the Fourth Amendment, 68 Case W. Res. L. Rev. 495, 533 (2017);

William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45 (2018)

(criticizing doctrinal underpinnings of qualified immunity and arguing

that modern doctrine has no legal basis).

Nos. 17-3060 & 18-1223 11

(“officials can still be on notice that their conduct violates es-

tablished law even in novel factual circumstances”).

Given those standards, how should courts analyze

whether a right is clearly established? The Supreme Court has

“repeatedly told courts … not to define clearly established

law at a high level of generality.” al-Kidd, 563 U.S. at 742 (cita-

tions omitted); see also Sanzone v. Gray, 884 F.3d 736, 741 (7th

Cir. 2018) (“reliance on the general standard for excessive

force ‘is not enough’ because the right must be ‘clearly estab-

lished in a more particularized, and hence more relevant,

sense’”) (internal quotation marks omitted), quoting Saucier v.

Katz, 533 U.S. 194, 201–02 (2001). Defining the right too

broadly “may defeat the purpose of qualified immunity.” Ab-

bott v. Sangamon County, 705 F.3d 706, 732 (7th Cir. 2013), cit-

ing Hagans v. Franklin County Sheriff’s Office, 695 F.3d 505, 508–

09 (6th Cir. 2012); see also Golodner v. Berliner, 770 F.3d 196,

206 (2d Cir. 2014) (“If … the right is defined too broadly, the

entire second prong of qualified immunity analysis will be

subsumed by the first and immunity will be available rarely,

if ever.”), citing al-Kidd, 563 U.S. at 742. On the other hand,

defining the right too narrowly is equally problematic. That

error “may defeat the purpose of § 1983.” Abbott, 705 F.3d at

732, citing Hagans, 695 F.3d at 508–09; see also Golodner, 770

F.3d at 206 (“If the right is defined too narrowly based on the

exact factual scenario presented, government actors will in-

variably receive qualified immunity.”). The Second Circuit

has said that the “Goldilocks principle” illustrates the “mid-

dle course” between the two extremes— not too broad, not

too narrow, but just right. Golodner, 770 F.3d at 206.

12 Nos. 17-3060 & 18-1223

Can we be more specific? Precedent tied to particularized

facts can indicate that law is clearly established, but the Su-

preme Court does “not require a case directly on point.” al-

Kidd, 563 U.S. at 741, citing Anderson, 483 U.S. at 640, and Mal-

ley v. Briggs, 475 U.S. 335, 341 (1986); accord, e.g., Green, 868

F.3d at 633 (“a case directly on point is not required”); Golod-

ner, 770 F.3d at 206 (“[t]his is not to say that an official action

is protected by qualified immunity unless the very action in

question has previously been held unlawful”), quoting Ander-

son, 483 U.S. at 640. “Of course, there can be the rare ‘obvious

case,’ where the unlawfulness of the officer’s conduct is suffi-

ciently clear even though existing precedent does not address

similar circumstances.” District of Columbia v. Wesby, 138 S. Ct.

577, 590 (2018), quoting Brosseau v. Haugen, 543 U.S. 194, 199

(2004); see also Vinyard v. Wilson, 311 F.3d 1340, 1350–514 (11th

Cir. 2002) (explaining that “obvious clarity” cases can exist (1)

where a statute or constitutional provision is “specific enough

to establish clearly the law applicable to particular conduct

and circumstances and to overcome qualified immunity, even

in the total absence of case law” and (2) where “broad statements

of principle in case law are not tied to particularized facts and

can clearly establish law applicable in the future to different

sets of detailed facts”). “[G]eneral statements of the law” can

give defendants “fair and clear warning,” White, 137 S. Ct. at

552, quoting United States v. Lanier, 520 U.S. 259, 271 (1997),

but “in the light of pre-existing law the unlawfulness must be

apparent.” Id., quoting Anderson, 483 U.S. at 640.

As we view this case, the question for qualified immunity

is whether it was clearly established in 2014 that a paramedic

“seizes” an arrestee and is subject to Fourth Amendment lim-

its on excessive force by sedating the arrestee—who appears

to the paramedic to be suffering from a medical emergency—

Nos. 17-3060 & 18-1223 13

before taking the arrestee by ambulance to the hospital. It was

not.

The district court defined the asserted right too broadly. It

said that “officers cannot use excessive force in effectuating an

arrest.” Thompson, 2017 WL 4248006, at *6 (collecting cases).

That “lofty definition of the right” is just “one floor down

from the words of the Fourth Amendment itself (‘the right to

be free of “unreasonable … seizures”’) and two floors down

from the highest level of generality possible (‘the right to be

free from a constitutional violation’).” Hagans, 695 F.3d at 508.

The district court’s formulation suggests that it tried to treat

this case as an obvious one, evident from broad principles in

excessive force cases. But we do not think a paramedic (or his

lawyer) reasonably familiar with circuit and Supreme Court

precedent would have understood that the Fourth Amend-

ment prohibition of unreasonable searches and seizures ap-

plies to treatment in the field during a medical emergency.

Fourth Amendment restrictions are almost wholly alien to

that situation, where paramedics are subject to a distinct set

of professional standards and goals aimed at responding to

medical emergencies. See Peete v. Metropolitan Government of

Nashville and Davidson County, 486 F.3d 217, 222 (6th Cir. 2007)

(reversing denial of qualified immunity for paramedics on ex-

cessive force claim; paramedics who responded to 911 call

about an epileptic seizure “acted in order [to] provide medical

aid” and did not act “to enforce the law, deter or incarcerate”

by restraining patient while patient was in prone position).

The district court’s formulation “defines the qualified im-

munity inquiry at a high level of generality … and then fails

to consider that question in ‘the specific context of the case.’”

Mullenix v. Luna, 136 S. Ct. 305, 311 (2015), quoting Brosseau,

14 Nos. 17-3060 & 18-1223

543 U.S. at 198. Neither the plaintiff estate nor the district

court cited any case where a court found that conduct like

Cope’s—administering a therapeutic drug in response to a

medical emergency—violated the Fourth Amendment.

The cases cited by plaintiff and the district court involved

excessive force cases brought against police officers. See

Thompson, 2017 WL 4248006, at *6, citing Graham v. Connor, 490

U.S. 386 (1989) (placing arrestee face down on hood of police

car and then throwing arrestee headfirst into car), Tennessee v.

Garner, 471 U.S. 1 (1985) (fatally shooting fleeing suspect), Ab-

dullahi v. City of Madison, 423 F.3d 763 (7th Cir. 2005) (kneeling

on suspect’s back while suspect was prone on ground, caus-

ing chest and neck trauma ultimately resulting in death), and

Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003) (slamming hand-

cuffs on arrestee’s wrist, jerking wrist, and tightening hand-

cuffs until arrestee could not feel hands). None of those cases

involved a health care provider—assisting officers or other-

wise—using a therapeutic drug to sedate an arrestee to be

taken safely to the hospital. The estate does not cite any case

where a court held that conduct like Cope’s in circumstances

at all like these violated the Fourth Amendment.

The estate cited one case involving medical defendants,

but it is quite distinct in both fact and theory. In Rivas v. City

of Passaic, 365 F.3d 181 (3d Cir. 2004), the decedent’s family

brought a § 1983 claim against medical defendants based on a

theory of state-created danger—not excessive force, which is

the only remaining theory for the plaintiff’s estate here be-

cause the district court dismissed the claims for failure to pro-

tect or intervene and deliberate indifference. In Rivas, the

Third Circuit affirmed the denial of qualified immunity for

Nos. 17-3060 & 18-1223 15

two emergency medical technicians who responded to a pa-

tient who was having a seizure. The court found that a jury

could have found that the EMTs misrepresented an assault to

later-responding law enforcement officers, failed to inform

the officers that the decedent was having a seizure and should

not be restrained, and then bound the decedent’s ankles with

cloth restraints anyway. Id. at 187, 194–97, 200–01.

Qualified immunity exists to avoid or at least to reduce the

risk of the kind of catch-22 that would result from accepting

the estate’s position: treat the arrestee or don’t treat him, but

face a lawsuit either way. Suppose we put aside for a moment

the human and professional ethics and responsibilities of par-

amedics and police officers when confronting a person in dire

straits. Let’s focus only on legally enforceable duties. If the of-

ficers and paramedic had not responded to Heishman’s ex-

cited delirium, they could easily have found themselves de-

fending against a deliberate indifference claim for ignoring

his obvious and serious medical needs. See, e.g., Florek v. Vil-

lage of Mundelein, 649 F.3d 594, 598 (7th Cir. 2011) (officer can

violate Fourth Amendment by failing to respond to arrestee’s

medical needs), citing Sides v. City of Champaign, 496 F.3d 820,

828 (7th Cir. 2007); Salazar v. City of Chicago, 940 F.2d 233, 237

(7th Cir. 1991) (paramedics can violate due process right by

failing to treat arrestee’s injuries), citing DeShaney v. Winne-

bago County Dep’t of Social Services, 489 U.S. 189, 200 (1989),

Archie v. City of Racine, 847 F.2d 1211, 1222 (7th Cir. 1988) (en

banc), and K.H. v. Morgan, 914 F.2d 846, 849 (7th Cir. 1990).

That dilemma helps to explain why the right the plaintiff

estate asserts here was not clearly established under the cir-

cumstances. To treat the right as clearly established, the dis-

trict court boiled away key circumstances of the situation

16 Nos. 17-3060 & 18-1223

here—especially the fact that Cope was a paramedic confront-

ing a patient suffering from a life-threatening emergency.

Those facts take this case out of the realm of clearly estab-

lished Fourth Amendment law. It was not clearly established

that a paramedic effects a “seizure” within the meaning of the

Fourth Amendment and subjects himself to an excessive force

claim by sedating an arrestee who is suffering from a medical

emergency to take the arrestee to the hospital. Defendant

Cope was entitled to summary judgment on the Fourth

Amendment claim.2

C. The Indiana Medical Malpractice Act Issues

The district court certified for interlocutory appeal the

question whether the Indiana Medical Malpractice Act ap-

plies to the estate’s state-law claims. See Ind. Code § 34-18-1-

1 et seq. That question comes to us with some “procedural

hiccups,” see Miller v. Herman, 600 F.3d 726, 731 (7th Cir.

2010), because of the different ways state and federal courts

use the label “jurisdictional.” On the merits, we conclude that

the estate’s state-law claims must be dismissed without prej-

udice. Those claims are subject to the Indiana Medical Mal-

practice Act and must be presented to a medical review panel

under the Act before the plaintiff estate may proceed in court.

See Ind. Code § 34-18-8-4. The medical review panel require-

ment is a substantive feature of the Act that must be enforced

2 We can imagine a different case where the excessive force question

would be closer. This is not, for example, a case where an arresting officer

summons a paramedic and then orders the paramedic to sedate an ar-

restee who does not need medical care just so the officer can put the ar-

restee in the back of a police car more easily. Cf. Haas, 2012 WL 1414115,

at *2 (plaintiff alleged police officers ordered paramedic to inject plaintiff

with tranquilizer).

Nos. 17-3060 & 18-1223 17

in federal court. Hines v. Elkhart General Hospital, 603 F.2d 646,

649–50 (7th Cir. 1979); see also Hahn v. Walsh, 762 F.3d 617, 633

(7th Cir. 2014) (discussing Hines and holding that similar re-

quirement applies to Illinois malpractice claims in federal

court). Before addressing the merits, we first address the pro-

cedural issues.

1. Sorting Out the Procedural Confusion

The defendants moved to dismiss for lack of subject-mat-

ter jurisdiction. That label would be correct under state law

applying the Medical Malpractice Act. E.g., Lorenz v. Anony-

mous Physician #1, 51 N.E.3d 391, 396 (Ind. App. 2016) (“a trial

court does not generally have jurisdiction over a medical mal-

practice action until proceedings before the Department of In-

surance conclude”). It is not correct under federal law.

In cases like this, where the defense moved to dismiss for

lack of subject-matter jurisdiction under Rule 12(b)(1) on the

theory that the plaintiff failed to satisfy a non-jurisdictional

requirement to exhaust administrative remedies, federal

courts should treat the motion as one to dismiss for failure to

state a claim under Rule 12(b)(6). See, e.g., Smoke Shop, LLC v.

United States, 761 F.3d 779, 782 n.1 (7th Cir. 2014) (affirming

dismissal under Rule 12(b)(6)); Miller v. Herman, 600 F.3d at

732–33 (converting mislabeled jurisdictional motion to Rule

12(b)(6) motion), citing Reynolds v. United States, 549 F.3d 1108,

1111–12 (7th Cir. 2008), Palay v. United States, 349 F.3d 418,

424–25 (7th Cir. 2003), Health Cost Controls v. Skinner, 44 F.3d

535, 538 (7th Cir. 1995), and Peckmann v. Thompson, 966 F.2d

295, 297 (7th Cir. 1992); see also Reed v. Columbia St. Mary’s

Hospital, 782 F.3d 331, 336 (7th Cir. 2015) (appellate court “can

18 Nos. 17-3060 & 18-1223

ignore the mischaracterization” when district court mischar-

acterizes merits dismissal as jurisdictional), citing Gogos v.

AMS Mech. Systems, Inc., 737 F.3d 1170, 1172 (7th Cir. 2013).

The defendants’ motion here did not actually address fed-

eral jurisdiction, but as noted, Indiana courts speak in terms

of subject-matter jurisdiction when dismissing claims that are

subject to the Medical Malpractice Act but have not gone

through the medical review panel process. Lorenz, 51 N.E.3d

at 396. A jurisdictional label under state law does not affect a

federal court’s subject-matter jurisdiction because “state law

cannot enlarge or contract federal jurisdiction.” Jarrard v. CDI

Telecommunications, Inc., 408 F.3d 905, 909 n.3 (7th Cir. 2005)

(district court “properly construed” motion filed under Rule

12(b)(1) as motion under Rule 12(b)(6); district court had di-

versity jurisdiction even though Indiana law gave state board

exclusive “jurisdiction” over worker’s compensation and re-

lated tort claims), citing Goetzke v. Ferro Corp., 280 F.3d 766,

779 (7th Cir. 2002), and Beach v. Owens–Corning Fiberglas Corp.,

728 F.2d 407, 409 (7th Cir. 1984).

This procedural hiccup turns out to have been harmless,

though. Both sides had a fair opportunity to submit relevant

evidence, and the legal issue can be decided based on undis-

puted facts. The parties litigated (and the district court de-

cided) whether the Medical Malpractice Act applies based on

evidence. Without saying so, the district court effectively con-

verted the motion to reconsider the denial of the motion to

dismiss into a motion for summary judgment by considering

“matters outside the pleadings.” Fed. R. Civ. P. 12(d); see also

Miller, 600 F.3d at 733 (treating motion to dismiss under Rule

12(b)(1) as motion under Rule 12(b)(6) and, in turn, treating

motion to dismiss as motion for summary judgment where

Nos. 17-3060 & 18-1223 19

moving party framed motion to dismiss in the alternative as

a motion for summary judgment and non-moving party had

opportunity to present responsive evidence), citing Tri–Gen

Inc. v. Int’l Union of Operating Engʹrs, Local 150, 433 F.3d 1024,

1029 (7th Cir. 2006), and Malak v. Associated Physicians, Inc.,

784 F.2d 277, 280 (7th Cir. 1986).

Treating a motion to dismiss as a motion for summary

judgment without giving the non-moving party notice of the

conversion and an opportunity to respond with evidentiary

material would pose a problem that could require a remand.

That is not what happened here. When the defendants sub-

mitted evidence to support their motion to reconsider the de-

nial of their motion to dismiss, the plaintiffs responded and

submitted evidence in return. See Dkt. 61 (defendant’s desig-

nations); Dkt. 68 (plaintiff’s designations in response). That

satisfied Rule 12(d)’s requirement that “parties must be given

a reasonable opportunity to present all the material that is

pertinent to the motion.” See also Miller, 600 F.3d at 733 (af-

firming dismissal where non-moving party had fair oppor-

tunity to present evidence). On appeal, plaintiffs do not argue

that the district court’s procedure prevented them from des-

ignating additional evidence. In any event, our standard of

review is still de novo. See id. (standard of review is de novo for

motions under Rules 12(b)(1), 12(b)(6), and 56).

We note one other procedural anomaly. The district court

will need to dismiss the claims without prejudice so that the es-

tate can refile the state-law claims if it clears the medical re-

view panel process. The defendants acknowledge that a dis-

missal without prejudice is the proper result here. It is unu-

sual for summary judgment to produce a dismissal without

20 Nos. 17-3060 & 18-1223

prejudice, but it is possible. See, e.g., Fluker v. County of Kanka-

kee, 741 F.3d 787, 791 (7th Cir. 2013) (summary judgment for

failure to exhaust administrative remedies as required by

Prison Litigation Reform Act should result in dismissal with-

out prejudice), citing Ford v. Johnson, 362 F.3d 395, 400–01 (7th

Cir. 2004). On to the merits.

2. Scope of the Medical Malpractice Act

Claims for medical malpractice in Indiana are subject to a

series of special requirements. One of the most important is

that, subject to limited exceptions that do not apply here,

claims must be presented to a medical review panel before the

plaintiff may pursue a claim in court. Ind. Code § 34-18-8-4.

Medical review panels include three providers, two of whom

must be from the individual defendant’s profession or spe-

cialty, and a non-voting attorney, who chairs the panel. §§ 34-

18-10-3(a)–(b) & -10-8. Each party may pick one provider pan-

elist, and those two panelists pick the third. § 34-18-10-6. The

panel has “the sole duty” to provide an expert opinion on

whether the evidence supports the conclusion that the pro-

vider “acted or failed to act within the appropriate standards

of care.” § 34-18-10-22. The opinion is “admissible as evidence

in any action subsequently brought by the claimant” but “is

not conclusive.” § 34-18-10-23. Malpractice claims are also

subject to statutory caps on damages. § 34-18-14-3.3

3As noted above, while the medical review panel process might ap-

pear to be “procedural” for Erie Railroad purposes, we have held that its

substantive policy foundations and effects make the requirement applica-

ble in federal civil actions. Jones v. Griffith, 870 F.2d 1363, 1368 (7th Cir.

1989), citing Hines v. Elkhart General Hospital, 603 F.2d 646 (7th Cir. 1979).

Nos. 17-3060 & 18-1223 21

The estate’s claims are subject to the Medical Malpractice

Act because the undisputed evidence indicates that Cope

acted to promote Heishman’s health and exercised his medi-

cal judgment to do so. It is undisputed that Cope assessed

Heishman, thought he was in excited delirium, which can re-

sult in cardiac arrest, and gave the sedative for Heishman’s

and the crew’s safety.

These facts fit comfortably within the broad statutory def-

initions of the Medical Malpractice Act. Modern Indiana stat-

utes tend to be written so that a great deal of substantive law

is placed in the statutory definitions. That is true here. Heish-

man was a “patient” who received “health care” from a

“health care provider.” The Act defines “patient” as “an indi-

vidual who receives or should have received health care from

a health care provider, under a contract, express or implied,

and includes a person having a claim of any kind, whether

derivative or otherwise, as a result of alleged malpractice on

the part of a health care provider.” Ind. Code § 34-18-2-22. The

Act defines “health care” as “an act or treatment performed

or furnished, or that should have been performed or fur-

nished, by a health care provider for, to, or on behalf of a pa-

tient during the patient’s medical care, treatment, or confine-

ment.” § 34-18-2-13. And the Act in turn defines “health care

provider” to include a “paramedic.” § 34-18-2-14(1). All of the

state-law claims relate to Cope’s administration of the seda-

tive. That makes them claims for “malpractice,” which is de-

fined as “a tort or breach of contract based on health care or

professional services that were provided, or that should have

been provided, by a health care provider, to a patient.” § 34-

18-2-18.

22 Nos. 17-3060 & 18-1223

Our reasoning is consistent with Indiana courts’ approach

to these statutory questions. To determine whether a claim is

for malpractice, Indiana courts analyze its substance, not its

label. See Robertson v. Anonymous Clinic, 63 N.E.3d 349, 359

(Ind. App. 2016), citing Van Sice v. Sentany, 595 N.E.2d 264, 267

(Ind. App. 1992), and Popovich v. Danielson, 896 N.E.2d 1196,

1202–04 (Ind. App. 2008). Regardless of labels, “claims that

boil down to a ‘question of whether a given course of treat-

ment was medically proper and within the appropriate stand-

ard’ are the ‘quintessence of a malpractice case.’” Howard Re-

gional Health System v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011),

quoting Van Sice, 595 N.E.2d at 267. “By contrast, to fall out-

side the Malpractice Act a health care provider’s actions must

be demonstrably unrelated to the promotion of the plaintiff’s

health or an exercise of the provider’s professional expertise,

skill, or judgment.” Id. at 186, citing Kuester v. Inman, 758

N.E.2d 96 (Ind. App. 2001), and Collins v. Thakkar, 552 N.E.2d

507, 510 (Ind. App. 1990).

The estate’s claims against Cope and the hospital do not

“sound[] in ordinary negligence where the factual issues are

capable of resolution by a jury without application of the

standard of care prevalent in the local medical community.”

Anonymous Hospital, Inc. v. Doe, 996 N.E.2d 329, 333 (Ind. App.

2013), citing Murphy v. Mortell, 684 N.E.2d 1185, 1188 (Ind.

App. 1997) (claim based on sexual battery by hospital em-

ployee during hospitalization fell outside Act), Doe by Roe v.

Madison Center Hospital, 652 N.E.2d 101, 103 (Ind. App. 1995)

(same for claim based on sexual assault by hospital em-

ployee), Harts v. Caylor–Nickel Hospital, Inc., 553 N.E.2d 874,

879 (Ind. App. 1990) (same for claim based on fall from hospi-

tal bed after bedrail collapsed), Winona Memorial Foundation of

Indianapolis v. Lomax, 465 N.E.2d 731, 732 (Ind. App. 1984)

Nos. 17-3060 & 18-1223 23

(same for claim based on patient’s fall due to protruding hos-

pital floorboard). Instead, the estate’s arguments—about

whether Cope gave the right dosage of the sedative or negli-

gently failed to monitor Heishman or change his prone posi-

tion—sound in malpractice. To resolve those issues, a judge

or jury will need to evaluate Cope’s actions in terms of medical

standards of care. The accompanying claims for emotional

distress are also subject to the Act because they result from the

alleged malpractice. Spangler v. Bechtel, 958 N.E.2d 458, 472

(Ind. 2011), quoting Ind. Code § 34-18-2-22.

To avoid this reasoning, the estate relies heavily on two

cases, but both are readily distinguishable. The first is Elliott

v. Rush Memorial Hospital, 928 N.E.2d 634, 637 (Ind. App.

2010), where a sheriff’s deputy took the plaintiff to the hospi-

tal after a traffic stop and told hospital staff that he had court

orders for blood and urine samples. The staff forcibly cathe-

terized the plaintiff to obtain a urine sample. The state appel-

late court affirmed dismissal of the proposed malpractice

complaint because the plaintiff was not a “patient” within the

meaning of the Medical Malpractice Act. The catheterization

“was not for his own medical benefit … but was carried out

solely for law enforcement purposes.” Id. at 640. Here, by con-

trast, the estate has not cited any evidence indicating that

Cope did not exercise medical judgment or that an instruction

from police officers somehow trumped his medical judgment.

Cope was treating a medical emergency, not gathering evi-

dence.

Second, the estate relies on Collins v. Thakkar, 552 N.E.2d

507 (Ind. App. 1990), where the plaintiff alleged that she had

a sexual relationship with a physician who, without her con-

24 Nos. 17-3060 & 18-1223

sent or knowledge, aborted her pregnancy during a pur-

ported pelvic examination. The appellate court reversed dis-

missal, holding that the doctor’s horrific acts “were not de-

signed to promote the patient’s health.” Id. at 511. The estate

argues here that Cope’s injection of Heishman was unrelated

to his health because the sedative was not for his benefit, but

for the benefit of Cope and law enforcement to carry out his

arrest. The undisputed facts show here, however, that Cope

believed Heishman was in a state of excited delirium and gave

the sedative for his safety and to transport him to the hospital.

* * *

The denial of Cope’s motion for summary judgment on

the excessive force claim and the denial of defendants’ motion

to dismiss the state-law claims are REVERSED. The case is

REMANDED with instructions to dismiss the estate’s state-

law claims without prejudice and to dismiss the federal

claims against Cope with prejudice.