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 interlocutory 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 paramedic 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 Amendment claims and state-law tort claims. The district court denied 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 Indiana 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 violate a patient-arrestee’s Fourth Amendment rights by exercising 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 substantive terms of Indiana’s Medical Malpractice Act, including 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 judgment 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 appeal 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 dispatched to the south side of Indianapolis for an animal bite. 

When he arrived, he learned that the bite was not from an animal but from a man, Dusty Heishman. Before Cope could 

treat the bite patient, an Indianapolis police officer approached 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 responding officer noticed that Heishman was sweating profusely 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, Heishman 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 airway, 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 defendants in state court. The estate brought claims under 42 

U.S.C. § 1983 against Cope in his individual and official capacities 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 federal-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 before 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 Indianapolis, 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 interlocutory appeal the question whether the Medical Malpractice 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 constitutional claims. The district court granted the motion on the 

official-capacity claims and the claims against Cope for deliberate 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 appealed, and we consolidated that appeal with the interlocutory 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 unappealable 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 reasons, however, the collateral-order doctrine gives us jurisdiction 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 evidence 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) (defendants challenged inferences drawn from recorded interrogations); 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 depended 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-enforcement capacity because he assisted the officers “in effectuating 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 officers acted in medical role was issue of fact), we lack jurisdiction 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 administer 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 decide 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 permitted and de novo. Estate of Clark, 865 F.3d at 549, citing Levin v. 

Madigan, 692 F.3d 607, 622 (7th Cir. 2012). “Qualified immunity ‘protects government officials from liability for civil damages insofar as their conduct does not violate clearly established 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 judgment 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 constitutional 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 entitled 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 because fact issues existed regarding medical necessity of sedation 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 Dorado, 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 conscious 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 statutory or constitutional question beyond debate.” Ashcroft v. alKidd, 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 unconstitutional. 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 established 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 (citations 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 established 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.” Abbott v. Sangamon County, 705 F.3d 706, 732 (7th Cir. 2013), citing 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 invariably receive qualified immunity.”). The Second Circuit 

has said that the “Goldilocks principle” illustrates the “middle 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 Supreme Court does “not require a case directly on point.” alKidd, 563 U.S. at 741, citing Anderson, 483 U.S. at 640, and Malley 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”); Golodner, 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 Anderson, 483 U.S. at 640. “Of course, there can be the rare ‘obvious 

case,’ where the unlawfulness of the officer’s conduct is sufficiently 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 limits 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 Amendment prohibition of unreasonable searches and seizures applies 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 excessive 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 immunity 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), Abdullahi v. City of Madison, 423 F.3d 763 (7th Cir. 2005) (kneeling 

on suspect’s back while suspect was prone on ground, causing chest and neck trauma ultimately resulting in death), and 

Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003) (slamming handcuffs on arrestee’s wrist, jerking wrist, and tightening handcuffs until arrestee could not feel hands). None of those cases 

involved a health care provider—assisting officers or otherwise—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 because the district court dismissed the claims for failure to protect 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 patient 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 paramedics and police officers when confronting a person in dire 

straits. Let’s focus only on legally enforceable duties. If the officers and paramedic had not responded to Heishman’s excited delirium, they could easily have found themselves defending against a deliberate indifference claim for ignoring 

his obvious and serious medical needs. See, e.g., Florek v. Village 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. Winnebago 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 circumstances. To treat the right as clearly established, the district court boiled away key circumstances of the situation 
16 Nos. 17-3060 & 18-1223 

here—especially the fact that Cope was a paramedic confronting a patient suffering from a life-threatening emergency. 

Those facts take this case out of the realm of clearly established 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 applies 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 prejudice. Those claims are subject to the Indiana Medical Malpractice 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 requirement 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 arrestee who does not need medical care just so the officer can put the arrestee 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 requirement applies to Illinois malpractice claims in federal 

court). Before addressing the merits, we first address the procedural issues. 

1. Sorting Out the Procedural Confusion

The defendants moved to dismiss for lack of subject-matter jurisdiction. That label would be correct under state law 

applying the Medical Malpractice Act. E.g., Lorenz v. Anonymous Physician #1, 51 N.E.3d 391, 396 (Ind. App. 2016) (“a trial 

court does not generally have jurisdiction over a medical malpractice action until proceedings before the Department of Insurance 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 mischaracterizes 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 federal 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 diversity jurisdiction even though Indiana law gave state board 

exclusive “jurisdiction” over worker’s compensation and related 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 undisputed facts. The parties litigated (and the district court decided) whether the Medical Malpractice Act applies based on 

evidence. Without saying so, the district court effectively converted 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 submitted evidence to support their motion to reconsider the denial of their motion to dismiss, the plaintiffs responded and 

submitted evidence in return. See Dkt. 61 (defendant’s designations); 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 (affirming dismissal where non-moving party had fair opportunity to present evidence). On appeal, plaintiffs do not argue 

that the district court’s procedure prevented them from designating 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 estate can refile the state-law claims if it clears the medical review panel process. The defendants acknowledge that a dismissal without prejudice is the proper result here. It is unusual 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 Kankakee, 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 without 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 specialty, and a non-voting attorney, who chairs the panel. §§ 34-

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

 3 As noted above, while the medical review panel process might appear to be “procedural” for Erie Railroad purposes, we have held that its 

substantive policy foundations and effects make the requirement applicable 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 medical judgment to do so. It is undisputed that Cope assessed 

Heishman, thought he was in excited delirium, which can result in cardiac arrest, and gave the sedative for Heishman’s 

and the crew’s safety. 

These facts fit comfortably within the broad statutory definitions of the Medical Malpractice Act. Modern Indiana statutes tend to be written so that a great deal of substantive law 

is placed in the statutory definitions. That is true here. Heishman was a “patient” who received “health care” from a 

“health care provider.” The Act defines “patient” as “an individual 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 furnished, by a health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” § 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 sedative. That makes them claims for “malpractice,” which is defined 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 treatment was medically proper and within the appropriate standard’ are the ‘quintessence of a malpractice case.’” Howard Regional 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 outside 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 employee 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 employee), Harts v. Caylor–Nickel Hospital, Inc., 553 N.E.2d 874, 

879 (Ind. App. 1990) (same for claim based on fall from hospital 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 hospital floorboard). Instead, the estate’s arguments—about 

whether Cope gave the right dosage of the sedative or negligently failed to monitor Heishman or change his prone position—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 hospital after a traffic stop and told hospital staff that he had court 

orders for blood and urine samples. The staff forcibly catheterized the plaintiff to obtain a urine sample. The state appellate 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 contrast, 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 evidence. 

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 purported pelvic examination. The appellate court reversed dismissal, holding that the doctor’s horrific acts “were not designed 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 statelaw claims without prejudice and to dismiss the federal 

claims against Cope with prejudice.