### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17-3060

B ILLIE T HOMPSON , as personal representative of the E STATE OF D USTY H EISHMAN , Plaintiff-Appellee
,

v.

L ANCE C OPE , Defendant-Appellant

.

____________________

No. 18-1223

B ILLIE T HOMPSON , as personal representative of the E STATE OF D USTY H EISHMAN , Plaintiff-Appellee
,

v.

L ANCE C OPE and H EALTH AND H OSPITAL C ORPORATION OF M ARION C OUNTY, 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

A RGUED M AY 31, 2018

— D ECIDED A UGUST 14, 2018

____________________

Before F LAUM , M ANION , and H AMILTON , Circuit Judges

. H AMILTON , 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 thestreet. 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 e ff orts 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 quali fi ed immunity to the paramedic on the excessive force claim. The court also allo wed all but one of the state-law claims to proceed against th e paramedic and the hospital without requiring the plainti ffestate to comply with the Indiana Medical Malpractice Act, Ind. Code § 34-18-1-1 et seq. The denial of quali fi ed immunity is appealable as to legal issues, and the district court certi fi ed for interlocutory appeal under 28 U.S.C. § 1292(b) the state-law question whether the estate’s claims are covered by the Indi ana Medical Malpractice Act.

We reverse as to both issues. The paramedic is entitled to quali fi ed immunity on the excessive force claim. Case law didnot (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 medicalNos. 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 fi led. 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 WL4248006, at *1–3 (S.D. Ind. Sept. 25, 2017). “Our review on appeal from denial of summary judgment based on quali fi ed immunity is limited to questions of law, so we recount the facts as stated by the districtcourt 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 quali fi ed 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 o ffi cer approached Cope and said he ne eded 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 cu ff ed behind his back and his ankles were shackled together. He had been tased by a police o ffi cer and had been punched and choked in a physical struggle with4 Nos. 17-3060 & 18-1223

two civilians who helped the o ffi cer wrestle Heishman to the ground. The police had responded to a report that Heishman wasnaked, belligerent, and roaming the neighborhood. The responding o ffi cer noticed that Heishman was sweating profusely and appeared to be on drugs. Heishman approached the o ffi cer’s vehicle despite the o ffi cer’s oral commands to calm down and sit down on the ground. The o ffi cer tased Heishman, but Heishman pulled the wires out of the taser, jumped back onto his feet, and tried to get into the o ffi cer’s car. Despite oral commands to calm down or sit down, Heishman stared through the o ffi cer and repeatedly said “they’re trying to kill me, they’re trying to kill me.” After more o ffi cers arrived, they tried to put Heishman in the back of a police transport wagon. Heishman resisted and knocked the o ffi cers

o ff balance, but the o ffi cers ultimately got Heishman back on the ground and held him there. Heishman was still struggling and fi ghting the o ffi cers who were holding him down. That was the scene when paramedic Cope arrived. Cope assessed Heishman. Afte r 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 hi s deposition testimony), which said he injected Heishman with a sedative, Versed, as a “chemical restraint for patient and crew safety.” While the sedative took e ff ect, Cope visually monitored Heishman by watching his breathing and watching for any struggling. Cope did not use medical equi pment to monitor Heishman’s vital signs. The medics and the o ffi cers 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 di ffi cult 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 HospitalCorporation 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 o ffi cial capacities for excessive force, deliberate indi ff erence, and failure to protect/intervene. The estate also brought six state-law claims against Cope, the hospit al, or both: wrongful death, damages resulting from injuries sustained before Heishman’s death, intentional in fl iction of emotional distress, negligent in fl iction of emotional distress, negligence, and ba tt ery. Thedefendants removed the case to federal court based on federal-question jurisdiction over the constitutional claims, with supplemental jurisdiction ov er the state-law claims. Cope and the hospital move d to dismiss the state-law claims for what they called lack of subject-ma tt er jurisdiction, arguing that Indiana’s Medical Malpractice Act required theestate to take those claims before a medical review panel before fi ling suit. The district cour t 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 41552246 Nos. 17-3060 & 18-1223

(S.D. Ind. Sept. 19, 2017). The district court certi fi ed for interlocutory appeal the question whether the Medical Malpractice Act applied to the estate’s state-law claims. Thompson v. Burne tt, 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 co urt granted the motion on the

o ffi cial-capacity claims and the claims against Cope for deliberate indi ff erence 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 th at appeal with the interlocutory appeal on the state malpractice issue.

II. Analysis

A. Limits of Jurisdiction Over Denial of Quali fi ed ImmunityDenials 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 quali fi ed 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 o ffi cial 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 Hu ff

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 cour t assumed them or accept the plainti ff ’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 plainti ff s version of facts as true); Gutierrez v. Kermon , 722 F.3d1003, 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 o ffi cers “in e ff ectuating 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 offi cers acted in medical role was issue of fact), we lack jurisdiction to review that fi nding by the district court. The appellants argue that undisputed facts re quire the opposite conclusion because Cope assessed Heishm an, thought he was under the in fl uence of drugs and in a state of excited delirium (which isa 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 Medic8 Nos. 17-3060 & 18-1223

Cope was asked by law enforcement o ffi cers 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 su ffi ciency of the evidence. They argue that the evidence is insu ffi cient to support the district court’s conclusion that Cope helped o ffi cers arrest Heishman. That looks like “a back-door e ff ort to contest the facts,” Jones v. Clark , 630 F.3d 677, 680 (7th Cir. 2011) , but we need not decide that issue de fi nitively. We have jurisdiction to decide the appeal on a di ff erent issue of law.

B. Denial of Quali fi ed Immunity

When a district court denies summary judgment based on quali fi ed immunity, our review of le gal 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). “Quali fi ed immunity ‘protects government o ffi cials 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 omi tt ed), quoting Pearson v. Callahan , 555 U.S. 223, 231 (2009). The quali fi ed immunity analysis at summary judgment is a two-step inquiry: “(1) whether the facts, taken in the light most favorable to the plainti ff , show that the defendantviolated 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 fi rst. Pearson , 555 U.S. at 236. If theNos. 17-3060 & 18-1223 9

answer to either question is no, the defendant o ffi cial 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 plainti ff 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 quali fi ed immunity on excessive forceclaim against paramedics who administered paralytic because fact issues existed regarding medical necessity of sedation and paramedics’ intent where plainti ff ’s expert opined there was no medical reason to paralyze decedent’s lungs), appeal dismissed in part sub no m. 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 quali fi ed immunity to paramedics on excessive force claim where police o ffi cersallegedly 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 quali fi ed immunity analysis is dispositive here, so we decline to decide the fi rst. 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 quali fi ed 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 preceden t 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 i ssue is whether the state of the law at the time of a defendant’s actions would have given thedefendant “fair warning” that her conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002). In Hope , the Court denied quali fi ed immunity and held that handcu ffi ng a prisoner to a hitching post vi olated 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 expa nsive regime of i mmunity that would prevent plaintiff from proving a serious constitutional violation”), citing Michael Silverstein , Note , Rebalancing Harlow: A Ne w 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 un derpinnings of qualified immunity and arguing that modern doctrine has no legal basis).Nos. 17-3060 & 18-1223 11

(“o ffi cials can still be on notice that their conduct violates established law even in novel factual circumstances”). Given those standards, ho w should courts analyze whether a right is clearly established? The Supreme Court has “repeatedly told courts ... not to de fi ne clearly established law at a high level of generality.” al-Kidd, 563 U.S. at 742 (citations omi tt ed); see also Sanzone v. Gray, 884 F.3d 736, 741 (7th Cir. 2018) (“reliance on the gene ral standard for excessive force ‘is not enough’ because th e right must be ‘clearly established in a more particularized, and hence more relevant, sense’”) (internal quotation marks omi tt ed), quoting Saucier v. Ka tz , 533 U.S. 194, 201–02 (2001). De fi ning the right too broadly “may defeat the purpose of quali fi ed immunity.” Abbo tt v. Sangamon County, 705 F.3d 706, 732 (7th Cir. 2013), citing Hagans v. Franklin County Sheri ff

’s O ffi ce , 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 de fi ned too broadly, the entire second prong of quali fi ed immunity analysis will be subsumed by the fi rst and immunity will be available rarely, if ever.”), citing al-Kidd, 563 U.S. at 742. On the other hand, de fi ning the right too narrowly is equally problematic. That error “may defeat the purpose of § 1983.” Abbo tt, 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 de fi ned too narrowly based on theexact factual scenario presented, government actors will invariably receive quali fi ed immunity.”). The Second Circuit has said that the “Goldilocks pr inciple” 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 speci fi c? Precedent tied to particularizedfacts 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 o ffi cial action is protected by quali fi ed 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 o ffi cer’s conduct is su ffi

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 “obvio us clarity” cases can exist (1) where a statute or constitutional provision is “speci fi c enough to establish clearly the law applicable to particular conduct and circumstances and to overcome quali fi ed 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 di ff erent sets of detailed facts”). “[G]ene ral 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 quali fi ed 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 su ff ering 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 de fi ned the asserted right too broadly. It said that “o ffi cers cannot use excessive force in e ff ectuating an arrest.” Thompson , 2017 WL 4248006, at *6 (collecting cases). That “lofty de fi nition of the right” is just “one fl oor down from the words of the Fourth Amendment itself (‘the right to be free of “unreasonable ... seizures”’) and two fl oors down from the highest level of genera lity 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 Courtprecedent would have understood that the Fourth Amendment prohibition of unreasonable searches and seizures applies to treatment in the fi eld 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 quali fi ed immunity for paramedics on excessive force claim; paramedi cs 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 “de fi nes the quali fi ed immunity inquiry at a high level of generality ... and then fails to consider that question in ‘the speci fi c 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 plainti ff 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 plainti ff and the district court involved excessive force cases brought against police o ffi cers. 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 head fi rst into car), Tennessee v. Garner, 471 U.S. 1 (1985) (fatally shooting fl eeing suspect), Abdullahi v. City of Madison , 423 F.3d 763 (7th Cir. 2005) (kneeling on suspect’s back while suspec t was prone on ground, causing chest and neck trauma ultima tely resulting in death), and Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003) (slamming handcu ff s on arrestee’s wrist, jerking wrist, and tightening handcu ff s until arrestee could not feel hands). None of those cases involved a health care provider—assisting o ffi cers 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 conduc t 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 plainti ff ’s estate here because the district court dismisse d the claims for failure to protect or intervene and deliberate indi ff erence. In Rivas , the Third Circuit a ffi rmed the denial of quali fi ed immunity forNos. 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 o ffi cers, failed to inform the o ffi cers that the decedent was having a seizure and should not be restrained, and then boun d the decedent’s ankles with cloth restraints anyway. Id. at 187, 194–97, 200–01. Quali fi ed immunity exists to avoid or at least to reduce the risk of the kind of catch-22 th at 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 ethi cs and responsibilities of paramedics and police o ffi cers when confronting a person in direstraits. Let’s focus only on legally enforceable duties. If the offi cers and paramedic had not re sponded to Heishman’s excited delirium, they could easily have found themselves defending against a deliberate indi ff erence 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) (o ffi cer 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 plainti ffestate 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 situation16 Nos. 17-3060 & 18-1223

here—especially the fact that Cope was a paramedic confronting a patient su ff ering 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 e ff ects a “seizure” within the meaning of the Fourth Amendment and subjects himself to an excessive force claim by sedating an arrestee who is su ff ering 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 certi fi ed 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 di ff erent ways state and federal courts use the label “jurisdictional.” On the merits, we conclude thatthe 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 plainti ff 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 exam ple, 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 ma lpractice claims in federal court). Before addressing the merits, we fi rst address the procedural issues.

1. Sorting Out the Procedural ConfusionThe defendants moved to dismiss for lack of subject-matter jurisdiction. That label wo uld 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 ju risdiction 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-ma tt er jurisdiction unde r Rule 12(b)(1) on the theory that the plainti ff 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) (a ffi rming 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 “can18 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-ma tt er 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 a ff ect a federal court’s subject-ma tt er 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 fi led under Rule 12(b)(1) as motion under Rule 12 (b)(6); district court had diversity jurisdiction even though Indiana law gave state boardexclusive “jurisdiction” over worker’s compensation and related tort claims), citing Goe tz ke 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 ca n 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 e ff ectively converted the motion to reconsider the denial of the motion to dismiss into a motion for summa ry judgment by considering “ma tt ers outside the pleadings.” Fed. R. Civ. P. 12(d); see also Miller, 600 F.3d at 733 (treating mo tion to dismiss under Rule 12(b)(1) as motion under Rule 12(b )(6) and, in turn, treating motion to dismiss as motionfor summary judgment whereNos. 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 Eng ʹ rs, 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 dismi ss 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 he re. When the defendants submi tt ed evidence to support their motion to reconsider the denial of their motion to dismiss, the plainti ff s responded and submi tt ed evidence in return. See Dkt. 61 (defendant’s designations); Dkt. 68 (plainti ff ’s designations in response). That satis fi ed Rule 12(d)’s requirement th at “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 (affi rming dismissal where non-moving party had fair opportunity to present evidence). On appeal, plainti ff s do not argue that the district court’s proc edure 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 re fi le the state-law claims if it clears the medical review panel process. The defendants acknowledge that a dismissal without prejudice is the pr oper result here. It is unusual for summary judgment to produce a dismissal without20 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 plainti ff may pursue a claim in co urt. Ind. Code § 34-18-8-4. Medical review panels include three providers, two of whommust be from the individual defendant’s profession or specialty, and a non-voting a tt orney, 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 wi thin the appropriate standards of care.” § 34-18-10-22. The opinio n is “admissible as evidence in any action subsequently br ought 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 itssubstantive 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 ev idence indicates that Copeacted to promote Heishman’s health and exercised his medical judgment to do so. It is undisputed that Cope assessed Heishman, thought he was in ex cited delirium, which can result in cardiac arrest, and gave the sedative for Heishman’s and the crew’s safety.

These facts fi t comfortably within the broad statutory definitions of the Medical Malpractice Act. Modern Indiana statutes tend to be wri tt en so that a great deal of substantive law is placed in the statutory de fi nitions. That is true here. Heishman was a “patient” who received “health care” from a “health care provider.” The Act de fi nes “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 re sult of alleged malpractice on the part of a health care prov ider.” Ind. Code § 34-18-2-22. The Act de fi nes “health care” as “an ac t or treatment performedor 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 con fi nement.” § 34-18-2-13. And the Act in turn de fi nes “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 defi ned 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 thatboil 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 plainti ff ’s health or an exercise of the pr ovider’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 Co pe 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 ba tt ery 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 sexu al 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 fl oorboard). Instead, the estate’s arguments—aboutwhether 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 accomp anying claims for emotional distress are also subject to the Ac t 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 fi rst is Ellio tt v. Rush Memorial Hospital , 928 N.E.2d 634, 637 (Ind. App. 2010), where a sheri ff ’s deputy took the plainti ffto the hospital after a tra ffi c stop and told hospital sta ff that he had court orders for blood and urine samples. The sta ffforcibly catheterized the plainti ffto obtain a urine sample. The state appellate court a ffi rmed dismissal of the proposed malpractice complaint because the plainti ff was not a “patient” within the meaning of the Medical Malpracti ce Act. The catheterization “was not for his own medical bene fi t ... 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 ju dgment or that an instruction from police o ffi cers 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 plainti ff 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 horri fi c 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 bene fi t, but for the bene fi t of Cope and law enforc ement 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 motionfor summary judgment on the excessive force claim and the denial of defendants’ motion to dismiss the state-law claims are REVERSED. The case isREMANDED with instructions to dismiss the estate’s statelaw claims without prejudice and to dismiss the federal claims against Cope with prejudice.