United States District Court, S.D. Indiana, Indianapolis Division
BILLIE THOMPSON as Personal Representative of the ESTATE OF DUSTY HEISHMAN, Plaintiff,
CITY OF INDIANAPOLIS, INDIANAPOLIS DEPARTMENT OF PUBLIC SAFETY, INDIANAPOLIS METROPOLITAN POLICE DEPARTMENT, BRIAN BURNETT, Officer, in his individual and official capacities, DONALD SPIEGL, Officer, in his individual and official capacities, WILLIAM BUECKERS, Officer, in his individual and official capacities, PHILLIP GREENE, Park Ranger, in his individual and official capacities, MARION COUNTY SHERIFF'S DEPARTMENT, BILLY JOHNSON, Deputy, in his individual and official capacities, HEALTH AND HOSPITAL CORPORATION OF MARION COUNTY, LANCE COPE, Medic, in his individual and official capacities, MARK BRITTON and WILLIAM PATTERSON, Defendants.
ORDER ON DEFENDANTS' PARTIAL MOTION TO
WALTON PRATT, JUDGE
matter is before the Court on a Partial Motion to Dismiss
filed pursuant to Federal Rule of Civil Procedure 12(b)(1) by
Defendants Health and Hospital Corporation of Marion County
(“HHC”) and Lance Cope (“Medic Cope”)
(Filing No. 19). Plaintiff Billie Thompson
(“Plaintiff”), representing the Estate of Dusty
Heishman (“Heishman”), filed this action alleging
Fourth and Fourteenth Amendment violations pursuant to 42
U.S.C. § 1983 and numerous state law claims, surrounding
Heishman's death following an arrest. HHC and Medic Cope
move to dismiss the state law claims against them because
they assert that Plaintiff is required by the Indiana Medical
Malpractice Act (“MMA”) to first take those claim
before a medical review panel. For the following reasons, the
Court grants in part and denies in part HHC's and Medic
Cope's Partial Motion to Dismiss.
being found naked in the street on October 5, 2014, Heishman
was arrested by Indianapolis Metropolitan Police Department
(“IMPD”) and later charged with resisting law
enforcement, battery resulting in bodily injury, criminal
mischief, and public nudity. (Filing No. 1-1 at p. 24, 27).
During the course of the arrest, Heishman was battered by
police officers and physically engaged by two civilian
bystanders. He was also tased on his stomach and chest by law
enforcement officers. Indianapolis Emergency Medical Services
(“IEMS”) were dispatched to the area regarding an
animal bite incident, when an IMPD officer came over and said
he needed medics to take a look at another patient who was
being combative. (Filing No. 27-1 at 2). The medics
observed that Heishman was lying prone in the middle of the
street, handcuffed behind his back with leg shackles on and
he had been tased. Id. Heishman was struggling with
officers who were holding him down. Id. An officer
indicated that he believed Heishman was intoxicated on PCP
and/or other drugs (Filing No. 1-1 at p. 26, ¶
37). Medic Cope gave Heishman 10 mg of Versed IM in his
left deltoid muscle as a “chemical restraint for
patient and crew safety.” (Filing No. 27-1 at
2). Heishman calmed down within a couple of minutes
after receiving the injection. Id. The IEMS crew and
officers picked Heishman up and placed him on a cot.
Id. On the way to the ambulance, it became apparent
that Heishman was no longer breathing, but darkness made it
difficult to assess his condition. (Filing No. 27-1 at
was placed into the ambulance, medics removed the cuffs and
the taser probes from Heishman's chest and abdomen, and
began CPR. Heishman had gone into respiratory and cardiac
arrest (Filing No. 19 at 2). He was revived by CPR
after seven minutes and was transported to Eskenazi Hospital
where he remained until the next day when he was transferred
to Methodist Hospital. Id. He had lost brain
function and was treated with Hypothermic Therapy in an
attempt to recover brain function. Id. However, the
attempts were futile and Heishman died on October 13, 2014.
September 28, 2015, Plaintiff filed this action against
multiple defendants alleging various tort claims (Filing
No. 1-1 at 22). The claims against HHC are the
following: Count VI-wrongful death, Count VII-the Indiana
Survival Act, Count VIII-intentional infliction of emotional
distress, Count IX-negligent infliction of emotional
distress, and Count XI-negligence. The claims against Medic
Cope are: Count II-excessive force, Count IV-deliberate
indifference, Count V-failure to protect, Count
VIII-intentional infliction of emotional distress, Count
IX-negligent infliction of emotional distress, Count
X-battery, and XI-negligence. HHC and Medic Cope do not
challenge the § 1983 claims, however they have filed the
Partial Motion to Dismiss the state law claims. (Filing
No. 19). The basis of their motion is that this Court
lacks subject matter jurisdiction over the state law claims
because those claims should have first been sent to a medical
review panel pursuant to the MMA.
Federal Rule of Civil Procedure 12(b)(1), a claim should be
dismissed if the federal court lacks jurisdiction over the
subject matter of the claim. See Hay v. Ind. State Bd. of
Tax Comm'rs, 312 F.3d 876, 879 (7th Cir.
2002) (“[j]urisdiction is the power to declare law, and
without it the federal courts cannot proceed.”). A
court ruling on a Rule 12(b)(1) motion to dismiss must accept
as true all well-pleaded factual allegations and draw
reasonable inferences in favor of the plaintiff. Capitol
Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir.
1993). However, where a party raises a factual question
concerning jurisdiction, “the district court is not
bound to accept as true the allegations of the complaint
which tend to establish jurisdiction.” Grafon Corp.
v. Hauserman, 602 F.2d 781, 783 (7th Cir. 1979). In such
circumstances, the district court may properly look beyond
the jurisdictional allegations of the complaint and view
whatever evidence has been submitted to determine whether
subject matter jurisdiction exists. Id.
burden of proof to demonstrate subject matter jurisdiction is
on the party asserting jurisdiction. United Phosphorus,
Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.
2003). In some instances, if subject-matter jurisdiction
turns on contested facts, the trial judge may be authorized
to review the evidence and resolve the dispute on her own.
(citing 5B C. Wright & A. Miller, Federal Practice
and Procedure § 1350, pp. 243-49 (3d ed.2004).
Further, “[a] claim is properly dismissed for lack of
subject matter jurisdiction when the court lacks the
statutory or constitutional power to adjudicate the
claim.” Gocke v. Comer, 2007 WL670961, *1
(S.D. Ind. 2007) (citing Home Builders Ass'n of
Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th
Medic Cope assert that the Plaintiff's claims against
them should be dismissed because this Court does not have
subject matter jurisdiction. Specifically, they argue that
the Plaintiff was required to take his state law claims
against them to the medical malpractice review panel before
proceeding in this Court pursuant to the Indiana Medical
Malpractice Act (“MMA”). Ind. Code §
34-18-8-4. They point out that the MMA grants subject matter
jurisdiction over medical malpractice claims first to the
medical review panel and then to the trial court. H.D. v.
BHC Meadows Hosp., Inc., 884 N.E.2d 849, 853
(Ind.Ct.App. 2008). Malpractice 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.” Ind.
Code § 34-18-2-18. A patient is “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
Indiana Court of Appeals has held that courts should
“look to the substance of a claim to determine the
applicability of the MMA.” Anonymous Hosp., Inc. v.
Doe, 996 N.E.2d 329, 333 (Ind.Ct.App. 2013). When
determining if a claim constitutes medical malpractice, the
Court must determine “whether [the] claim is based on
the [provider's] behavior or practices while acting in
[his] professional capacity as a provider of medical
services.” Johnson v. Layton,
1:13-CV-0809-WTL-MJD, 2014 WL 1515920, at *6 (S.D. Ind. Apr.
18, 2014) (citing Madison Ctr., Inc. v. R.R.K., 853
N.E.2d 1286, 1288 (Ind.Ct.App. 2006)). Moreover, a
physician-patient relationship is necessary to bring claims
under the procedures of the MMA. Weldon v. Universal
Reagents, Inc., 714 N.E.2d 1104, 1110 (Ind. Ct.App.
1999) (a participant in a red blood cell donor program was
not a patient for purposes of the MMA when the procedure
performed on her body, the injection of antigens to produce
antibodies for manufacture of RhoGam for pregnant
women, was not performed for the participant's benefit).
If the trial court finds the case is one of medical
malpractice as defined by the Act, then it lacks subject
matter jurisdiction unless the plaintiff has filed a proposed
complaint with the Department of Insurance and met other
conditions of the Act. Id.; Ind. Code §
27-12-1-1 et seq.
Plaintiff argues that Heishman was not Medic Cope's
patient at the time that he gave Heishman the sedative. He
argues the sedative was not designed to promote
Heishman's health, but rather was given to assist law
enforcement in restraining Heishman during an arrest.
Plaintiff points out that Indiana Code § 16-22-8-34(23)
provides that HHC and its employees are allowed to perform
some non-medical treatment related functions, such as the
ability to “enforce Indiana laws, administrative rules,
ordinances, and the code of health and hospital corporation
of the county.” Thus, even when HHC and its employees
are acting within their official capacity, their functions
are not necessarily within the scope of the MMA. To support
his position that Heishman was not a patient, Plaintiff
points out that Heishman was given the sedative against his
will since he did not consent to the medication and did not
receive any benefit from it. As an example, Plaintiff cites
to the Indiana Court of Appeals, which held that a patient
who was given a catheter to retrieve a urine sample for the
police was not a patient for purposes of the MMA. Elliott
v. Rush Meml. Hosp., 928 N.E.2d 634 (Ind.Ct.App. 2010).
Plaintiff argues that Medic Cope's act of injecting
Heishman with a sedative was done as an act of law
enforcement and sounds in ordinary negligence rather than
medical malpractice, thus the MMA does not apply. A case
sounds in ordinary negligence where the factual issues are
capable of resolution by a jury without application of the
standard of care ...