THOMPSON v. CITY OF INDIANAPOLIS et al
Filing
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ORDER granting 153 Motion for Interlocutory Appeal. The Medical Defendants may proceed to seek interlocutory appeal pursuant to Federal Rule of Appellate Procedure 5 regarding the question of the applicability of the Indiana Medical Malpractice Act to Thompson's claims. Signed by Judge Tanya Walton Pratt on 12/27/2017. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BILLIE THOMPSON, as personal
representative of the ESTATE OF DUSTY
HEISHMAN,
Plaintiff,
v.
BRIAN BURNETT, DONALD SPIEGL,
WILLIAM BUECKERS, PHILLIP GREENE,
BILLY JOHNSON, HEALTH AND
HOSPITAL CORPORATION OF MARION
COUNTY, LANCE COPE,
MARK BRITTON, and WILLIAM
PATTERSON,
Defendants.
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Case No. 1:15-cv-01712-TWP-DML
ORDER ON MEDICAL DEFENDANTS’ MOTION TO AMEND
ENTRY ON MOTION FOR RECONSIDERATION (ECF NO. 149)
TO INCLUDE PERMISSION FOR INTERLOCUTORY APPEAL
This matter is before the Court on a Motion to Amend Entry on Motion for Reconsideration
(ECF No. 149) to Include Permission for Interlocutory Appeal (“Motion for Interlocutory Appeal”)
filed pursuant to Federal Rule of Appellate Procedure 5(a)(3) and 28 U.S.C. § 1292(b) by
Defendants Health and Hospital Corporation of Marion County and Medic Lance Cope
(collectively, the “Medical Defendants”) (Filing No. 153).
Plaintiff Billie Thompson (“Thompson”), as personal representative of the Estate of Dusty
Heishman (“Heishman”), filed this action alleging numerous state law claims and Fourth and
Fourteenth Amendment violations after Heishman died following his arrest. The Medical
Defendants moved to dismiss the state law claims against them, asserting that the Court lacked
subject matter jurisdiction based on Indiana’s Medical Malpractice Act, which requires a plaintiff
to first present state law medical negligence claims to a medical review panel before bringing the
claims to court. The Court granted in part and denied in part the Medical Defendants’ motion to
dismiss, explaining that, with the exception of the wrongful death claim against HHC, the claims
did not fall under the Medical Malpractice Act, and thus, the Court had subject matter jurisdiction
to consider the claims (Filing No. 54 at 8).
Following the Court’s Order on their motion to dismiss, the Medical Defendants filed a
motion for reconsideration, arguing that the Court misunderstood the facts concerning the medical
care provided by Medic Cope to Heishman. Medic Cope contends that he was not assisting law
enforcement to effectuate an arrest, but rather, he was rendering medical treatment to Heishman
for Heishman’s medical benefit. The parties submitted new evidence in relation to the motion for
reconsideration. The Court denied the Medical Defendants’ motion for reconsideration, explaining
that there were no manifest errors of law or fact in the Order denying the motion to dismiss, and
the newly submitted evidence did not justify an amendment or alteration to the Court’s previous
Order (Filing No. 149 at 11–12).
The Medical Defendants filed their Motion for Interlocutory Appeal, asking the Court to
certify for an immediate, interlocutory appeal its Order denying the motion for reconsideration.
For the reasons that follow, the Court grants the Medical Defendants’ Motion for Interlocutory
Appeal.
I.
LEGAL STANDARD
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order involves a
controlling question of law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation, he shall so state in writing in such order.
28 U.S.C. § 1292(b).
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If a party cannot petition for appeal unless the district court first enters an
order granting permission to do so or stating that the necessary conditions are met,
the district court may amend its order, either on its own or in response to a party’s
motion, to include the required permission or statement.
Fed. R. App. P. 5(a)(3).
There are four statutory criteria for the grant of a section 1292(b) petition to
guide the district court: there must be a question of law, it must be controlling, it
must be contestable, and its resolution must promise to speed up the litigation.
There is also a nonstatutory requirement: the petition must be filed in the district
court within a reasonable time after the order sought to be appealed.
Ahrenholz v. Bd. of Trs., 219 F.3d 674, 675 (7th Cir. 2000).
II.
DISCUSSION
The Medical Defendants ask the Court to certify the Order (Filing No. 149) denying the
motion for reconsideration for an immediate, interlocutory appeal. They argue that the four
statutory requirements are satisfied, and they filed their Motion within a reasonable time—only
ten days after the Order was entered. The Medical Defendants assert that the Court’s determination
that the state law claims relating to Medic Cope “providing a sedative to an individual who is in
police custody and who is in a state of excited delirium are not subject to the Indiana Medical
Malpractice Act ultimately presents a question of law.” (Filing No. 153 at 2.) They point to
Anonymous Hosp., Inc. v. Doe, 996 N.E.2d 329, 332 (Ind. Ct. App. 2013), in which the Indiana
Court of Appeals explained, “Whether a case is one of medical malpractice as defined by the
[Indiana Medical Malpractice Act] is a question for the court.” The Medical Defendants assert that
there is no dispute regarding the essential facts surrounding Medic Cope’s actions, and the question
of whether the claims fall under the Medical Malpractice Act is a question of law to be determined
by the Court.
Next, the Medical Defendants argue that the issue is controlling because the Medical
Malpractice Act mandates that medical malpractice claims proceed through a medical review panel
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prior to adjudication in court. B.R. ex rel Todd v. State, 1 N.E.3d 708, 713 (Ind. Ct. App. 2013);
H.D. v. BHC Meadows Hosp., Inc., 884 N.E.2d 849, 853 (Ind. Ct. App. 2008). They assert that the
question need not be “controlling” for the entire action, but rather, the question is controlling over
all the state law claims, and they assert this is sufficient.
The Medical Defendants assert that the applicability of the Medical Malpractice Act is
contestable. When considering contestability, courts “examine the strength of the arguments in
opposition to the challenged ruling,” which “includes examining whether other courts have
adopted conflicting positions regarding the issue of law proposed for certification.” In re
Bridgestone/Firestone, Inc., 212 F. Supp. 2d 903, 909–10 (S.D. Ind. 2002) (citation and quotation
marks omitted). The Medical Defendants point to cases from Minnesota, Michigan, and Ohio state
courts where it was determined that certain claims against paramedics fell under those states’
medical malpractice statutes. They note that the “other courts” do not have to be within the Seventh
Circuit or be precedential to satisfy the contestability requirement.
Lastly, the Medical Defendants argue resolution of this issue will speed up the litigation
because, if the state law claims brought against them are subject to the Medical Malpractice Act,
then Thompson is required to first proceed with her claims before a medical review panel. Thus,
they assert, this is a threshold issue that should be decided at the beginning of the case rather than
allowing the case to proceed through trial. They explain that they have filed an interlocutory appeal
as a matter of right concerning the Court’s denial of qualified immunity, and the issues presented
in that appeal are closely related to the issues in this requested appeal, so allowing this appeal will
speed up the litigation by resolving the issues in a single appeal.
In response, Thompson explains the criteria for a permissive interlocutory appeal “are
conjunctive, not disjunctive . . . [and] do[] not provide for an immediate appeal solely on the
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ground that such an appeal may advance the proceedings in the district court.” Ahrenholz, 219 F.3d
at 676. Thompson further notes that in regard to the first criteria—the issue must be a question of
law—the Seventh Circuit has explained, “the ‘question of law’ requirement refers to ‘a ‘pure’
question of law rather than merely to an issue that might be free from a factual contest.’” (Filing
No. 162 at 2 (quoting Ahrenholz, 219 F.3d at 676–77).)
Thompson argues that the Medical Defendants’ challenge to the Court’s Order is a factintensive inquiry requiring a determination of whether the claims are general negligence or medical
malpractice. She asserts that this is not a pure question of law that can meet the first requirement
for a permissive interlocutory appeal. In particular, the Indiana Medical Malpractice Act “is not
all-inclusive as to claims against medical providers, and a claim against a medical provider
sounding in general negligence or premises liability rather than medical malpractice falls outside
the procedural and substantive provisions of the MMA.” Anonymous Hosp., 996 N.E.2d at 333.
Courts look at “whether the claim is based on the provider’s behavior or practices while acting in
his professional capacity as a provider of medical services.” Id. (citation and quotation marks
omitted). Furthermore, “a physician-patient relationship is necessary to bring claims under the
procedures of the MMA.” Id. at 334. And the treatment provided must be for the patient’s benefit.
See Weldon v. Universal Reagents, Inc., 714 N.E.2d 1104, 1110 (Ind. Ct. App. 1999).
Thompson asserts that, in order to determine whether Medic Cope’s actions fall within the
scope of the Medical Malpractice Act, the Court is required to review facts concerning Medic
Cope’s actions the night of the incident, decide whether a physician-patient relationship was
formed, and consider whether treatment was provided for Heishman’s benefit. Thus, Thompson
argues, whether a claim falls within the scope of the Medical Malpractice Act involves numerous
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factual considerations and is not a “pure question of law” that the court of appeals “could decide
quickly and cleanly without having to study the record.” Ahrenholz, 219 F.3d at 677.
Regarding the second requirement for interlocutory appeal, Thompson argues the Medical
Defendants’ motion for reconsideration and motion to dismiss only related to the state law claims
and not the entire action, and thus, the issues proposed for interlocutory appeal are not controlling
over Thompson’s federal claims.
Concerning contestability, Thompson points out that none of the cases on which the
Medical Defendants rely are within the Seventh Circuit or are precedential. Further, the Medical
Defendants do not address the medical malpractice statutes from the other states and whether, like
the Indiana Medical Malpractice Act, they rely upon factual considerations to determine if their
malpractice standards apply. Thompson notes,
[W]hile the outcomes of the cases cited to by the Defendants may be different than
the outcome in this Court’s Entry, that does not mean that this Court’s Entry is a
contestable question of law. The Defendants’ citations simply demonstrate that
different courts have reached different conclusions after applying different facts to
different laws, which is not relevant or persuasive as related to this case or the
MMA.
(Filing No. 162 at 4.) Thus, Thompson argues, the contestability element is not satisfied.
Finally, Thompson asserts that an interlocutory appeal of the state law claims will not speed
up the litigation or materially advance the ultimate termination of the litigation. She explains that,
even if the Seventh Circuit were to determine that the Medical Defendants were entitled to
dismissal of the state law claims, the federal claims may still proceed, depending on the outcome
of the “as-a-matter-of-right” appeal. Thus, there is no promise that an interlocutory appeal will
produce a speedy outcome.
In their reply brief, the Medical Defendants emphasize that the issue is a question of law,
and they quote from the Court’s Entry on Medical Defendants’ Motion for Partial Summary
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Judgment regarding the federal constitutional claim for deliberate indifference. The Medical
Defendants “respectfully submit that the Court’s findings of undisputed fact granting qualified
immunity on the deliberate indifference/objective unreasonableness claim establishes that, as a
matter of law, the state law claims against Medic Cope are subject to the MMA.” (Filing No. 163
at 2.) The Court notes that the state law claims were part of the Medical Defendants’ motion to
dismiss but were not part of their motion for partial summary judgment. Thus, the state law claims
were not at issue and not considered when the Court analyzed and decided the federal
constitutional claims on summary judgment.
After a careful consideration of the issues raised and the arguments presented, the Court
determines that a permissive interlocutory appeal of the Entry on Medical Defendants’ Motion for
Reconsideration (Filing No. 149) is warranted. The Medical Defendants have shown that each of
the requirements established in 28 U.S.C. § 1292(b) is satisfied, and they filed their Motion within
a reasonable time, only ten days after the Order was entered.
While the Indiana Court of Appeals explained the Medical Malpractice Act “is not allinclusive as to claims against medical providers, and a claim against a medical provider sounding
in general negligence or premises liability rather than medical malpractice falls outside the
procedural and substantive provisions of the MMA,” Anonymous Hosp., 996 N.E.2d at 333, the
court also explained, “[w]hether a case is one of medical malpractice as defined by the MMA is a
question for the court.” Id. at 332. The Court acknowledges that determining whether a particular
incident falls within the reach of the Medical Malpractice Act requires looking at the facts of the
case; however, in this case there is no dispute regarding the essential facts surrounding Medic
Cope’s actions. Rather, the dispute focuses on the interpretation of the facts and the application of
the law to those facts. The question of whether the Medical Malpractice Act applies to Thompson’s
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claims is a question of law to be decided by the Court that does not require significant study of the
record to resolve factual disputes. Thus, the first factor for a permissive interlocutory appeal is
satisfied.
While the issue proposed for interlocutory appeal may not be controlling over Thompson’s
federal claims, the issue is controlling over the state law claims because the Medical Malpractice
Act mandates that medical malpractice claims proceed through a medical review panel prior to
adjudication in court. This is enough to satisfy the second requirement for an interlocutory appeal.
The Court is persuaded that the issue regarding the applicability of the Medical Malpractice
Act is contestable. The Medical Defendants have presented case law wherein courts determined
that a paramedic’s actions fell within the reach of the medical malpractice act. Indeed, the Indiana
Court of Appeals has considered situations where the Indiana Medical Malpractice Act may apply
to the actions of a medical provider and may not apply to other situations. See, e.g., Anonymous
Hosp., 996 N.E.2d 329. Thompson’s arguments and the Medical Defendants’ arguments
concerning the applicability of the Medical Malpractice Act were both strong, supported
arguments, and the decision was a close call. Therefore, the Court determines that the issue is
contestable.
Resolution of this issue will speed up the litigation because answering the preliminary
question of whether the claims must first be presented to a medical review panel will allow the
claims to promptly be directed to such a panel, if appropriate and necessary, before awaiting trial
and appeal. Additionally, the issues presented in the Medical Defendants’ interlocutory appeal as
a matter of right concerning qualified immunity are closely related to the issues in this requested
appeal, so allowing this appeal may speed up the litigation by resolving the issues in a single
appeal.
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III.
CONCLUSION
Having shown that each of the Section 1292(b) requirements is satisfied, and having filed
their Motion within a reasonable time, the Medical Defendants’ Motion for Interlocutory Appeal
is granted (Filing No. 153). The Medical Defendants may proceed to seek interlocutory appeal
pursuant to Federal Rule of Appellate Procedure 5 regarding the question of the applicability of
the Indiana Medical Malpractice Act to Thompson’s claims.
SO ORDERED.
Date: 12/27/2017
Distribution:
Scott Leroy Barnhart
ATTORNEY AT LAW
barnhart@kbindy.com
Thomas J.O. Moore
OFFICE OF CORPORATION COUNSEL
thomas.moore@indy.gov
Brooke Smith
KEFFER BARNHART LLP
Smith@KBindy.com
Andrew R. Duncan
RUCKELSHAUS KAUTZMAN
BLACKWELL BEMIS & HASBROOK
ard@rucklaw.com
Mary M. Ruth Feldhake
BOSE MCKINNEY & EVANS, LLP
mfeldhake@boselaw.com
Edward J. Merchant
RUCKELSHAUS KAUTZMAN
BLACKWELL BEMIS & HASBROOK
ejm@rucklaw.com
Philip R. Zimmerly
BOSE MCKINNEY & EVANS, LLP
pzimmerly@boselaw.com
John F. Kautzman
RUCKELSHAUS KAUTZMAN
BLACKWELL BEMIS & HASBROOK
jfk@rucklaw.com
Andrew J. Upchurch
OFFICE OF CORPORATION COUNSEL
andrew.upchurch@indy.gov
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