Gonzalez v. Duane ( 2023 )

Case: 21-11258 Document: 00516884650 Page: 1 Date Filed: 09/06/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
September 6, 2023
No. 21-11258 Lyle W. Cayce
____________ Clerk
Berman De Paz Gonzalez, individually and as heir and on behalf of
the Estate of Berman De Paz-Martinez; Emerita
Martinez-Torres, individually and as heir and on behalf of the
Estate of Berman De Paz-Martinez,
Plaintiffs—Appellants,
versus
Therese M. Duane; Acclaim Physician Group,
Incorporated; Tarrant County Hospital District, doing
business as JPS Health Network,
Defendants—Appellees,
consolidated with
_____________
No. 22-11019
_____________
Berman De Paz Gonzalez, individually and as heir and on behalf of
the Estate of Berman De Paz-Martinez; Emerita
Martinez-Torres, individually and as heir and on behalf of the
Estate of Berman De Paz-Martinez,
Plaintiffs—Appellants,
versus
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Therese M. Duane, Medical Doctor,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CV-72
______________________________
Before Haynes and Engelhardt, Circuit Judges, and Saldaña,
District Judge.*
Per Curiam:†
Berman De Paz-Martinez, Jr., a twenty-one-year-old, was severely
injured after he jumped out of a moving vehicle. He was hospitalized, and
later died after Dr. Theresa Duane disconnected him from a ventilator,
allegedly without his parents’ consent. Berman De Paz Gonzalez, Sr. and
Emerita Martinez-Torres (“Plaintiffs”), claim Dr. Duane’s actions violated
their and their son’s procedural due process rights under the Fourteenth
Amendment and the Texas Advance Directives Act (“TADA”). They filed
a wrongful death and survival action under 42 U.S.C. § 1983 against Dr.
Duane, Acclaim Physician Group, Inc. (“Acclaim”), and JPS Health
Network (“JPS”) (collectively, “Defendants”). The district court
dismissed Plaintiffs’ claims against JPS and Acclaim in full, and against Dr.
Duane, in part. After discovery, the district court granted Dr. Duane’s
summary judgment motion. Plaintiffs timely appealed both judgments in two
separate appeals, now consolidated. For the reasons set forth below, we
AFFIRM.
_____________________
*
United States District Judge for the Southern District of Texas, sitting by
designation.
†
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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I. Background
A. Facts
On March 29, 2018, De Paz-Martinez, Jr. was taken to the JPS
Emergency Department after he sustained serious injuries by jumping from
a moving vehicle that was traveling at approximately 45 miles per hour. On
arrival, De Paz-Martinez, Jr. was in a coma and required intubation. JPS staff
told Plaintiffs that their son’s prognosis was extremely poor, and he likely
would not survive.
Two days later, Plaintiffs met with a nurse practitioner for a physician
and pastoral care conference. During this conversation, Plaintiffs indicated
that they wished to continue treatment. Early the next morning, Dr.
Duane—a Medical Director for JPS and a member of Acclaim’s board of
directors—told Mr. De Paz Gonzalez that his son would be disconnected
from the ventilator. Shortly after De Paz-Martinez, Jr. was taken off the
ventilator, he died.
Later that year, a political advocacy group called Direct Action Texas
published an article claiming that a medical director at JPS had been
terminating life-sustaining treatment for patients, in violation of the TADA.
An anonymous JPS surgical resident subsequently verified the article’s
allegations, indicating that on three different occasions, Dr. Duane had
improperly withdrawn medical treatment without familial consent. This,
along with allegations of other questionable conduct by Dr. Duane, caused
ICU nurses to make a report to JPS’s CEO. After an investigation, Dr.
Duane agreed to dismissal from her position in lieu of JPS filing a formal
complaint against her with the Texas Medical Board.
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B. Procedural History
Plaintiffs sued under § 1983 asserting, among other claims, that
Defendants violated their Fourteenth Amendment procedural due process
rights when Defendants allegedly failed to comply with the TADA. See Tex.
Health & Safety Code §§ 166.001–.053. Plaintiffs brought their
claims individually, as heirs, and on behalf of their son’s estate. Shortly
thereafter, Plaintiffs voluntarily dismissed, and the district court entered final
judgment on, the claims on behalf of their son’s estate. Defendants then
moved to dismiss the remaining claims, which the district court granted. We
vacated the judgment on appeal and remanded, concluding Plaintiffs had
standing to assert a wrongful death and survival action under § 1983. De Paz
v. Duane, 858 F. App’x 734, 738 (5th Cir. 2021) (mem.).
On remand, Plaintiffs reasserted their § 1983 claims, individually and
as heirs. Specifically, Plaintiffs claimed that Defendants violated their
constitutional rights by depriving: (1) their son of his life and liberty interests
inherent in the United States Constitution; (2) their son of his life, liberty,
and property interests created by the TADA; and (3) them of their own
liberty and property interests created by the TADA.
Defendants renewed their motions to dismiss, which the district court
granted in part. It dismissed all § 1983 claims against JPS and Acclaim on the
ground that Plaintiffs failed to plausibly plead municipal liability and entered
a final judgment as to them under Rule 54(b). It also dismissed Plaintiffs’
§ 1983 claim against Dr. Duane that was based on the alleged deprivation of
their and their son’s due process rights created by the TADA. Plaintiffs
timely appealed this partial, final judgment under Case No. 21-11258.
Thereafter, discovery proceeded as to the sole surviving claim—
whether Dr. Duane violated § 1983 by depriving Plaintiffs of their Fourteenth
Amendment due process rights that are inherent in the Constitution. Dr.
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Duane moved for summary judgment, which the district court granted. The
district court reasoned that Plaintiffs could not recover damages because De
Paz-Martinez, Jr.’s preexisting injuries were the proximate cause of his
death, not Dr. Duane’s conduct. Plaintiffs timely appealed under Case No.
22-11019. The two appeals were initially consolidated only for oral argument
purposes, but we hereby consolidate them in full.1
II. Jurisdiction & Standard of Review
The district court had jurisdiction under 28 U.S.C. § 1331. We in turn
have appellate jurisdiction under 28 U.S.C. § 1291 because the district
court’s order granting Dr. Duane’s motion for summary judgment was a final
judgment. Likewise, because the prior “prejudicial adverse interlocutory
rulings” merged with the final judgment, we have jurisdiction over the
district court’s orders granting JPS’s and Acclaim’s motions to dismiss in full
and Dr. Duane’s motions to dismiss in part. Dickinson v. Auto Ctr. Mfg. Co.,
733 F.2d 1092, 1102 (5th Cir. 1983).
We review a district court’s dismissal of a complaint under Rule
12(b)(6) de novo. Gen. Elec. Cap. Corp. v. Posey, 415 F.3d 391, 395 (5th Cir.
2005). To determine whether a plaintiff has stated a plausible claim for relief,
“the well-pleaded facts alleged in [the] complaint are accepted as true and
the allegations are construed in the light most favorable to” the plaintiff.
Arias-Benn v. State Farm Fire & Cas. Ins. Co., 495 F.3d 228, 230 (5th Cir.
2007). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
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1
Accordingly, the issue in Case No. 21-11258 as to whether Dr. Duane’s partial
summary judgment was appealable in that case is now moot. As discussed below, given the
consolidation, all the relevant rulings are before us.
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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
Likewise, we review a district court’s order granting summary
judgment de novo, applying the same standard as the district court. Brand
Servs., L.L.C. v. Irex Corp., 909 F.3d 151, 155–56 (5th Cir. 2018) (quotation
omitted). “Summary judgment is proper only when it appears that there is
no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law.” Id. at 156 (quotation omitted). We view the
facts in the light most favorable to the non-movant and draw all inferences in
his favor. Id. (quotation omitted).
III. Discussion
Plaintiffs contend the district court erred when it granted JPS’s and
Acclaim’s motions to dismiss in full and Dr. Duane’s motion to dismiss in
part. Likewise, Plaintiffs also contend the district court erred in granting Dr.
Duane’s motion for summary judgment. We examine each challenge in turn,
but none warrant reversal.2
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2
In addition to those discussed in this opinion, Plaintiffs raise several other
challenges to the district court’s orders granting Defendants’ motions to dismiss and
motions for summary judgment—including, whether they have procedural due process
rights under the Fourteenth Amendment for end-of-life decisions, whether Dr. Duane is
entitled to qualified immunity, whether Dr. Duane’s removal of the ventilator implicates
Plaintiffs’ liberty interest in end-of-life decisions, etc. We need not reach these issues,
however, because we are affirming on the grounds stated above. Thus, we express no
judgment on the merits of the district court’s conclusions regarding these issues other than
to note in De Paz v. Duane, 858 F. App’x 734 (5th Cir. 2021) (mem.), we addressed
Plaintiffs’ standing to sue under § 1983, not whether they had a procedural due process
right to end-of-life decisions inherent in the United States Constitution. Id. at 736 n.9, 738.
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A. Motion to Dismiss
In their appeal of the motion to dismiss, Plaintiffs urge that they have
plausibly pled municipal liability against JPS and Acclaim, and that the
TADA creates a life, liberty, or property interest for them and their son. We
disagree.
1. Municipal Liability
To establish municipal liability under § 1983, Plaintiffs “must
identify: (1) an official policy (or custom), of which (2) a policymaker can be
charged with actual or constructive knowledge, and (3) a constitutional
violation whose moving force is that policy or custom.” Valle v. City of
Houston, 613 F.3d 536, 541–42 (5th Cir. 2010) (internal quotation marks and
citation omitted). Plaintiffs falter on the first requirement.3
Plaintiffs’ first theory is that Dr. Duane was delegated policymaking
authority by virtue of her positions as “Vice Chair,” “Department Chair,”
and “Medical Director” of JPS and because she allegedly “overs[aw] and
assume[d] responsibility for her department.” But this is not enough by itself
for us to infer that Dr. Duane has been delegated final policymaking
authority, especially when for JPS, the medical executive committee sets the
policy for medical decisions, and for Acclaim, its board of directors sets the
policies. See Tex. Health & Safety Code § 281.0286(e), (f)(1)(F);
Tex. Bus. Orgs. Code §§ 22.201, 22.202. Thus, the most we can infer
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3
Plaintiffs also request that we adopt Texas’s “vice principal” doctrine as a proxy
for the “policymaker” standard when the defendant is a private corporation, like Acclaim,
instead of a municipal corporation. We respectfully decline Plaintiffs’ request as it
completely misapplies the “vice principal” doctrine. See, e.g., Austin v. Paramount Parks,
Inc., 195 F.3d 715, 727–28 (4th Cir. 1999); see also Kennemer v. Parker Cnty., No. 21-10467,
2022 WL 2610239, at *1 n.1 (5th Cir. July 8, 2022) (per curiam); Kimble v. Correcthealth
Jefferson, L.L.C., No. 22-30388, 2023 WL 3946437, at *1 (5th Cir. June 12, 2023) (per
curiam); Olivas v. Corr. Corp. of Am., 215 F. App’x 332, 333 (5th Cir. 2007) (per curiam).
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is that Dr. Duane has been delegated decision-making authority, which is not
enough. Sweetin v. City of Tex. City, 48 F.4th 387, 393 (5th Cir. 2022).
Plaintiffs’ second theory is that their allegations create an inference
that Acclaim and JPS had a policy of granting physicians discretion to make
unilateral end-of-life decisions. To support their second theory, Plaintiffs
contend JPS’s and Acclaim’s arguments before the district court and in the
first appeal that the TADA is optional constitute judicial admissions. Not so.
Judicial admissions are inapplicable to questions of law. See Blankenship v.
Buenger, 653 F. App’x 330, 335 & n.15 (5th Cir. 2016) (per curiam).
What Plaintiffs are left to argue then is that the anonymous email and
article from the advocacy group demonstrates a widespread practice or
custom. This too fails. They, at most, allege isolated incidents by a single
doctor within a one-month period. See Bennett v. City of Slidell, 728 F.2d
762, 768 n.3 (5th Cir. 1984); Connick v. Thompson, 563 U.S. 51, 61 (2011)
(explaining that for § 1983 liability, a practice must be “so persistent and
widespread as to practically have the force of law”).
Nor can we reasonably infer that Dr. Duane acted pursuant to an
official policy when Plaintiffs’ other allegations—that other personnel
reported Dr. Duane’s conduct to JPS’s CEO, resulting in her dismissal—are
inconsistent with this inference. Without more—such as allegations that
other doctors engaged in the same type of conduct—Plaintiffs fail to plausibly
plead facts suggesting an official municipal policy. See Fraire v. City of
Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992) (holding “[a]llegations of an
isolated incident are not sufficient to show the existence of a custom or
policy”).
Plaintiffs’ last theory is the converse of the second—Acclaim and JPS
were deliberately indifferent to the need for a policy prohibiting unilateral
termination decisions either by failing to adopt a policy or by failing to train
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their personnel. This theory fails for being too conclusory. Spiller v. City of
Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (explaining “[t]he
description of a policy or custom and its relationship to the underlying
constitutional violation, moreover, cannot be conclusory; it must contain
specific facts”). Accordingly, we affirm the district court’s dismissal of
Acclaim and JPS.
2. Texas Advance Directives Act
Plaintiffs contend that the TADA creates a life, liberty, or property
interest for their son to receive life-sustaining treatment and for them to make
medical decisions on his behalf. We disagree.
State-created substantive interests arise when a state places
“‘substantive limitations on official discretion.’” See Ridgely v. FEMA, 512
F.3d 727, 735 (5th Cir. 2008) (quoting Olim v. Wakinekona, 461 U.S. 238, 249
(1983)). A state law substantively limits official discretion when it establishes
“substantive predicates to govern official decision-making” and also
“mandate[es] the outcome to be reached” when the substantive predicates
are met. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 462 (1989) (internal
quotation marks and citation omitted). The state law must also use
“explicitly mandatory language” and require a particular substantive
outcome. Id. at 463.
Under the TADA, when a terminally ill patient has not executed an
advanced directive and is incapable of communicating, the attending
physician and the patient’s parents “may make a treatment decision that may
include a decision to withhold or withdraw life-sustaining treatment.” See
Tex. Health & Safety Code § 166.039(a), (b). If the parents make a
decision regarding life-sustaining treatment and the treating physician
refuses to comply with the treatment decision, the physician must follow the
procedure set forth in § 166.046 in order to remain within the aegis of the
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TADA. See id. § 166.045(d). Under § 166.046, the physician’s refusal to
honor the treatment decision made by the patient’s parents is “reviewed by
an ethics or medical committee,” and the patient must be “given life-
sustaining treatment during th[is] review.” Id. § 166.046(a-1). Importantly,
the procedures set forth in § 166.046 do not mandate a particular substantive
outcome—that is, the committee is free to affirm or reverse the physician’s
decision. See id. § 166.046.
Based on these provisions, we conclude the TADA does not create a
substantive interest for Plaintiffs or their son. While the TADA may contain
substantive predicates—like a parent’s decision regarding life sustaining
treatment and a doctor’s refusal to comply with that decision—no particular
substantive outcome is guaranteed.4 Rather, the TADA guarantees only that
a review of the physician’s decision by an ethics or medical committee will
take place, and the committee has largely unfettered discretion to either
affirm or reverse the physician’s decision. See id.; see also T.L. v. Cook
Children’s Med. Ctr., 607 S.W.3d 9, 80, 85 (Tex. App.—Fort Worth 2020,
pet. denied) (explaining “[§] 166.046 makes no provision whatsoever for how
the committee will review or otherwise consider the attending physician’s
decision” and that “[b]y giving the deciding ‘vote’ to [the]
committee, . . . [§] 166.046(e) unquestionably trumps the . . . surrogate
decision maker’s decision”). Thus, at most, Plaintiffs and their son have an
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4
To be clear, when the process under § 166.046 is invoked, there is an entitlement
to life-sustaining treatment for a limited period of time. See Tex. Health & Safety
Code § 166.046(a-1). However, this limited, mandatory right does not dictate that a
particular outcome follow from the procedures at issue, but “rather[] . . . simply sets the rules
[for life-sustaining treatment] pending that outcome.” Cf. Elwell v. Byers, 699 F.3d 1208,
1215 (10th Cir. 2012) (concluding a foster-care statute did not create a liberty interest
despite it requiring a temporary substantive result—that a child could not be removed from
a foster home upon request of a hearing—because the statute did not mandate any
particular outcome from the hearing and procedures).
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expectation in receiving a certain process, which is not, by itself, enough. See
Olim, 461 U.S. at 250 n.12 (“[A]n expectation of receiving process is not,
without more, a liberty interest protected by the Due Process Clause.”).
Accordingly, we affirm the district court’s dismissal of Plaintiffs’ claims
against Dr. Duane based on the TADA.
B. Motion for Summary Judgment
Plaintiffs contend the district court erred when it (1) concluded there
was no genuine dispute of material fact regarding § 1983 causation, and
(2) rejected application of the “loss of chance” doctrine. Neither argument
has merit.5
“[A] plaintiff seeking to recover on a wrongful death claim under
§ 1983 must prove both the alleged constitutional deprivation required by
§ 1983 and the causal link between the defendant’s unconstitutional acts or
omissions and the death of the victim, as required by the state’s wrongful
death statute.” Slade v. City of Marshall, 814 F.3d 263, 264 (5th Cir. 2016)
(quotation omitted). Under Texas’s Wrongful Death Act, “liability may be
predicated only on an injury that causes an individual’s death.” Id.(quotation omitted). It is not sufficient to show that the defendant’s
wrongful actions “reduced the decedent’s chance of survival by some lesser
degree.” Id. at 265.
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5
Recall that Plaintiffs voluntarily dismissed their claims brought on behalf of De
Paz-Martinez, Jr.’s estate under Texas’s survival statute. See Tex. Civ. Prac. & Rem.
Code § 71.021. Claims under the survival statute are effectively derivative claims.
Schaefer v. Gulf Coast Reg’l Blood Ctr., 10 F.3d 327, 330 (5th Cir. 1994) (per curiam). Thus,
when Plaintiffs voluntarily dismissed these claims, their son’s rights were no longer in play.
In fact, Plaintiffs do not even contest the district court’s conclusion to that effect. Naturally
then, our holding regarding causation only applies to Plaintiffs’ wrongful death action
asserted under § 1983.
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Plaintiffs argue there is a genuine dispute of material fact regarding the
“causal link” between the alleged deprivation of due process and their son’s
death because after Dr. Duane removed their son’s ventilator (and did not
reintubate him), he died. However, Plaintiffs fail to create a fact issue by
providing evidence rebutting Dr. Duane’s medical evidence which
establishes that the actual cause of their son’s death was his underlying
injuries, not Dr. Duane’s removal of the ventilator. Put differently, Plaintiffs
have not offered any competent evidence which demonstrates that
“[D]efendant’s wrongful actions more likely than not caused [De Paz-
Martinez, Jr.’s] death—not just that they reduced [his] chance of survival by
some lesser degree.” See id. at 264–65. Indeed, Plaintiffs’ separate lawsuit
against the driver of the moving vehicle, in which they claimed that the
driver’s conduct caused their son’s death, directly contradicts their
argument that this is not a “loss of chance” case. As such, we conclude there
is no genuine dispute of material fact regarding causation.
Plaintiffs’ second argument is similarly foreclosed by Slade. See id. at
267. Plaintiffs argue it is inconsistent with policies underlying § 1983 to reject
application of the “loss of chance” doctrine because most victims who have
had life-support withdrawn without consent are terminally ill, and therefore,
if the “loss of chance” doctrine did not apply, these victims could never
recover. We rejected this argument in Slade. See id. (noting “[t]he fact that
employing the Texas rule . . . denies compensation to appellants does not
suffice to render the borrowing impermissibly inconsistent with federal law”
(alteration in original) (quotation omitted)). As such, in the context of this
case, rejection of the “loss of chance” doctrine is not inconsistent with the
policies underlying § 1983. Accordingly, we affirm the district court’s grant
of summary judgment in favor of Dr. Duane.
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IV. Conclusion
For the reasons set forth above, we AFFIRM the district court’s
orders granting JPS’s and Acclaim’s motions to dismiss, partially granting
Dr. Duane’s motion to dismiss, and granting Dr. Duane’s motion for
summary judgment.
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