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.