De Paz Gonzalez v. Duane

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NORTHERN DISTRICT OF TEXAS

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IN THE UNITED STATES DISTRICT COURT | MAR 11 2022 |

NORTHERN DISTRICT OF TEXAS | he □□□

FORT WORTH DIVISION CLERK, US, DISTS

BERMAN DE PAZ GONZALEZ AND § □□ ~

EMERITA MARTINEZ-TORRES, §

INDIVIDUALLY AND AS HEIRS, §

AND ON BEHALF OF THE ESTATE OF §

BERMAN DE PAZ-MARTINEZ, § : :

§

Plaintiffs, §

§

VS. § NO. 4:20-CV-072-A

§

THERESA M, DUANE, M.D., ET AL., 8&8

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Came on for consideration the motion of defendant Theresa

M. Duane, M.D., (“Duane”) for summary judgment based on

qualified immunity. The court, having considered the motion, the

response of plaintiffs, Berman DePaz Gonzalez and Emerita

Martinez-Torres, individually, the reply, the record, and

applicable authorities, finds that the motion should be denied.

I.

Background

As recited in the court’s November 18, 2021 memorandum

opinion and order, Doc.+ 58, plaintiffs allege in their amended

'The “Doc, _” reference is to the number of the item on the docket in this action. \

complaint that:

On March 29, 2018, Berman DePaz Gonzalez (“Berman”),

suffered a very serious brain injury, was in a coma in grave

condition, and was kept alive by a ventilator at John Peter

Smith Hospital. Doc. 46, §§ 13, 16, 18. Plaintiffs were informed

through an interpreter that their son’s prognosis was extremely

poor, Id. | 18. The family came to pray for a miracle and almost

immediately Berman started making movements for the first time.

td. On March 31, 2018, the family spent 45 minutes with a

chaplain, telling him that they believed in miracles, saw Berman

make movements in response to prayer, absolutely did not wish to

stop treatment, and needed more time. Id. 4 19. Staff told the

family that Berman could stay for seven days, at which time he

would be released to go home with the necessary medical

equipment to keep him alive. Id. § 20. At 6:00 a.m. the next

morning, Duane appeared with an interpreter and told Berman’s

father that the doctors had gotten together and decided to take

Berman off life support. Id. § 21. Duane disconnected Berman and

his father watched him die. Id. {| 22.

The court has dismissed the claims against Tarrant County

Hospital District (“JPS”), owner of the hospital where Berman

died, and Acclaim Physician Group, Inc. (“Acclaim”), which

3 .

employed Duane. Docs. 58 & 59. The only remaining claims are

against Duane under 42 U.S.C. § 1983.

Ii.

Ground of the Motion

Duane contends that she is entitled to qualified immunity

as to plaintiffs’ § 1983 claims.

Til.

Applicable Standard of Review

A, Summary Judgment

Rule 56(a) of the Federal Rules of Civil Procedure provides

that the court shail grant summary judgment on a claim or

defense if there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56{a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247 (1986). The movant bears the initial burden of pointing out

to the court that there is no genuine dispute as to any material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).

The movant can discharge this burden by pointing out the absence

of evidence supporting one or more essential elements of the

nonmoving party’s claim, “since a complete failure of proof

concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” Id. at 323.Once

the movant has carried its burden under Rule 56(a}), the ©

nonmoving party must identify evidence in the record that

creates a genuine dispute as to each of the challenged elements

of its case. Id. at 324; see also Fed. R. Civ. P. S6{c) (“A

party asserting that a fact .. . is genuinely disputed must

support the assertion by . . . Giting to particular parts of

materials in the record . . .”), T£ the evidence identified

could not lead a rational trier of fact to find in favor of the

nonmoving party as to each essential element of the nonmoving

party’s case, there is no genuine dispute for trial and summary

judgment is appropriate. Matsushita Elec. Indus, Co. v. Zenith

Radio Corp., 475 U.S. 574, 587, 597 (1986). In Mississippi Prot.

& Advocacy Sys., Inc. v. Cotten, the Fifth Circuit explained:

Where the record, including affidavits,

interrogatories, admissions, and depositions could

not, as a whole, lead a rational trier of fact to find

for the nonmoving party, there is no issue for trial.

929 F.2d 1054, 1058 (5th Cir. 1991). .

The standard for granting a motion for summary judgment is

the same as the standard for rendering judgment as a matter of

law.*? Celotex Corp., 477 U.S. at 323. Tf the record taken as a

whole could not lead a rational trier of fact to find for the

?tn Boeing Co. v. Shipman, 411 F.2d 365, 374-75 {5th Cir. 1969)

(en banc), the Fifth Circuit explained the standard to be applied in

determining whether the court should enter judgment on motions for

directed verdict or for judgment notwithstanding the verdict.

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non-moving party, there is no genuine issue for trial.

Matsushita, 475 U.S. at 597; see also Mississippi Prot. &

Advocacy Sys., 929 F.2d at 1058.

The mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported

motion for summary judgment. Anderson, 477 U.S. at 247-48.

Moreover, * [w] hen opposing parties tell two different stories,

one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for

summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

Although the court must resolve all factual inferences in

favor of the nonmovant, the nonmovant cannot manufacture a

disputed material fact where none exists. Albertson v. T.Jd.

Stevenson & Cao., 749 F.2d 223, 228 (Sth Cir. 1984). Nor can the □

nonmovant rely on conclusory allegations unsupported by concrete

and particular facts. Duffy v. Leading Edge Prods., Inc., 44

F.3d 308, 312 (5th Cir. 1995).

Qualified Immunity

Qualified immunity insulates a government official from

civil damages liability when the official’s actions do not

“violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v.

.

Fitzgerald, 457 U.S. 800, 818 (1982). For a right to be “clearly

established,” the right’s contours must be “sufficiently clear

that a reasonable official would understand that what he is

doing violates that right.” Anderson v. Creighton, 483 U.S. 635,

640 (1987). Individual liability thus turns on the objective

legal reasonableness of the defendant's actions assessed in

light of clearly established law at the time. Hunter v. Bryant,

502 U.S. 224, 228 (1991}; Anderson, 483 U.S. at 639-40, In

Harlow, the court explained that a key question is “whether that

law was clearly established at the time an action occurred”

because “[i]f the law at that time was not clearly established,

an official could not reasonably be expected to anticipate

subsequent legal developments, nor could he fairly be said to

‘know’ that the law forbade conduct not previously identified as

unlawful.” 457 U.S. at 818. In assessing whether the law was

clearly established at the time, the court is to consider all

relevant legal authority, whether cited by the parties or not.

Elder v. Holloway, 510 U.S. 510, 512 (1994). If public officials

of reasonable competence could differ on the lawfulness of

defendant's actions, the defendant is entitled to qualified

immunity. Mullenix v. Luna, 577 U.S. 7, 11 (2015); Malley v.

Briggs, 475 U.S. 335, 341 (1986); Fraire v. City of Arlington,

957 F.2d 1268, 1273 (5th Cir. 1992). “[A]n allegation of malice

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is not sufficient to defeat immunity 1£ the defendant acted in

an objectively reasonable manner.” Malley, 475 U.S. at 341.

In analyzing whether an individual defendant is entitled to

qualified immunity, the court considers whether plaintiff has

alleged any violation of a clearly established right, and, if

so, whether the individual defendant’s conduct was objectively

reasonable. Siegert v. Gilley, 500 U.S. 226, 231 {1991); Duckett

v. City of Cedar Park, 950 F.2d 272, 276-80 (Sth Cir. 1992). In

so doing, the court should not assume that plaintiff has stated

a claim, i.e., asserted a violation of a constitutional right. □

Siegert, 500 U.S. at 232. Rather, the court must be certain

that, if the facts alleged by plaintiff are true, a violation

has clearly occurred. Connelly v. Comptroller, 876 F.2d 1209,

1212 (Sth Cir. 1989). A mistake in judgment does not cause an

officer to lose his qualified immunity defense. In Hunter, the

Supreme Court explained:

The qualified immunity standard “gives ample room for

Mistaken judgments” by protecting “all but the plainly

incompetent or those who knowingly violate the law.”

Malley, (475 U.S.] at 343. . . . This accommodation for

reasonable error exists because “officials should not err

always on the side of caution” because they fear being

sued. ...

502 U.S. at 229. Further, that the defendant himself may have

created the situation does not change the analysis. That he

could have handled the situation better does not affect his

entitlement to qualified immunity. Young v. City of Killeen, 775

F.2d 1349, 1352-53 (Sth Cir. 1985).

When a defendant relies on qualified immunity, the burden

is on the plaintiff to negate the defense. Kovacic v.

Villarreal, 628 F.3d 209, 211 (5th Cir, 2010); Foster v. City of

Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994). Although Supreme

Court precedent does not require a case directly on point,

existing precedent must place the statutory or constitutional

question beyond debate. White v. Pauly, 137 8. Ct. 548, 551

(2017). That is, the clearly established law upon which

plaintiff relies should not be defined at a high level of

generality, but must be particularized to the facts of the case.

Id. at 552. Thus, the failure to identify a case where an

defendant acting under similar circumstances was held to have

violated a plaintiff's rights will most likely defeat the

plaintiff’s ability to overcome a qualified immunity defense.

Surratt v McClarin, 851 F.3d 389, 392 (5th Cir. 2017).

IV.

‘Undisputed Facts

The record establishes the following undisputed facts:

‘JPS is a county hospital district created under Chapter 281

of the Texas Health and Safety Code. Doc. 68 at Appx. 25. JPS

owns and operates John Peter Smith Hospital and other health

care facilities to furnish medical and hospital care to indigent

residents of Tarrant County, Texas. Id. at Appx. 13. Acclaim is

a nonprofit corporation organized under 501(c) (3) of the

Internal Revenue Code and laws of the State of Texas, including

but not limited to Tex. Health & Safety Code § 281.0565. Id. at

Appx. 25. Its sole member is JPS. Acclaim operates solely for

the benefit of, and to support, promote, and advance the mission

of, JPS. Id. It does so through a professional services

agreement, the preamble of which provides in pertinent part that

JPS requires “the provision of professional medical services”

and “professional administration and management” and that:

[Acclaim] employs and/or contracts with physicians and

other health care providers who are qualified to

provide professional medical services to patients and

to provide administrative and management services . .

[Acclaim] has developed and maintains the

infrastructure, expertise and resources necessary to

provide certain medical and administrative services.

and related activities...

Id. at Appx. 13.

At the time of Berman’s death, Duane was employed by

Acclaim to work in the department of surgery and surgical

specialties at John Peter Smith Hospital. Id. at Appx. 25.

Vv.

Analysis

The parties agree that whether Duane can assert qualified

immunity depends upon (1) general principles of tort immunities

and defenses applicable at common law around the time of the

enactment of § 1983 in 1871, and (2) the purposes served by

granting immunity. Sanchez v. Oliver, 995 F.3d 461, 466 (5th

Cir, 2021); Perniciaro v. Lea, 901 F.3d 241, 251 (5th Cir.

2018}. The purposes served by granting qualified immunity are:

{1) preventing unwarranted timidity in the exercise of official

duties; (2) ensuring that highly skilled and qualified

candidates are not deterred from public service by the threat of

liability; and (3) protecting public employees from all of the

distraction that litigation entails. Sanchez, 995 F.3d at 467

{quoting Perniciaro, 901 F.3d at 253).

In this case, Duane simply argues that she is entitled to

qualified immunity because the facts here are more like those in

Perniciaro:- and Filarsky v. Delia, 566 U.S. 377 (2012), than

Sanchez and Richardson v. McKnight, 521 U.S. 399 (1997).:The

whole argument takes little more than two pages of her brief.

Doc. 67 at 4-6. Plaintiffs object that Duane has not provided

allegations, evidence or argument necessary to make an

evaluation of the first requirement. Indeed, the Fifth Circuit

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has cautioned that the court must not “shirk [its]

responsibility to conduct a robust historical inquiry.” Sanchez,

995 F.3d at 468. None has been provided here.

In Perniciaro, the Fifth Circuit held that two

psychiatrists employed by Tulane University who provided

services at a state-run facility owned and operated by the

Louisiana Department of Health were entitled to assert the

defense of qualified immunity. The psychiatrists, like the

attorney in Filarsky, were retained to work alongside government

employees who were entitled to qualified immunity. The court

emphasized that they were private individuals serving the state

on a part-time basis. 901 F.3d at 252,

In Sanchez, the Fifth Circuit held that an employee of an

employer systematically organized to perform the major

administrative task of providing mental-health care at state

facilities was not entitled to qualified immunity. 955 F.3d 461.

The court distinguished Filarsky in which an individual was

retained as an individual to perform discrete government tasks

with direct supervision by the government . Id. at 468. And,

citing cases from other circuits finding no compelling history

of immunity for private medical providers working for a state,’

3 See, c.g., McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012)(conducting a thorough discussion of the history of

immunity of doctors and finding that there was no special immunity for a doctor working for the state).

li

the court determined that “the key to untangling whether there

is a tradition of immunity applicable to private citizens in

[the position of the defendant] is the nature of the claims

against her.” Id. at 469. Further, it noted that there appears

to have been no tradition of immunity for a doctor who acted

recklessly. Id. Therefore, it found that there was not a

sufficient historical tradition of immunity at common law to

support making the defense of qualified immunity available to a

mental healthcare provider employed by a large, for-profit

company contracted by a government entity to provide care in a

correctional setting.’ Id.

This case lies somewhere in between Perniciaro and Sanchez.

Duane has provided enough evidence to show that she was

privately employed by an entity created to operate John Peter

Smith Hospital and its related facilities. It appears that

Acclaim operates with limited direct government supervision. For

example, providers must be pre-approved by JPS, but approval

shall not be unreasonably withheld. Doc. 68 at Appx. 16,

{ 3.1.3. A material breach of the agreement allows JPS to

immediately and in its sole discretion terminate the agreement

and replace Acclaim. Id. at Appx. 17, { 3.3. The contract has a

Again, although the holding of Sanchez pertained to a doctor employed by large for-profit company retained to

provide care in a correctional setting, the discussion of the history of immunity for doctors is not so limited,

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term, although the definition of the term has not been included

in the evidence before the court. Id. at Appx. 21, J 4.1.

Duane's opening brief has no discussion of the second part

of the applicable test to determine whether qualified immunity

can be asserted. Doc. 67. The discussion in the reply comes too

late and fails to cite any case with facts similar to this one.:

Doc. 74. In any event, Duane has not provided evidence to

support any contention that the requirements are met. The most

important purpose of qualified immunity is avoiding unwarranted

timidity by those carrying out the government’s work. Sanchez,

995 F.3d at 469. The second purpose is to ensure that talented

candidates are not deterred from public service. Id. at 470.

And, the third purpose is to protect public employees from

frequent lawsuits that might distract them from their official

duties. Id. at 471-72. The court can only surmise that the

portions of the contract that have not been provided include

provisions réquiring Acclaim to procure insurance and to insure

and/or indemnify its employees. They may also provide

information about pay and benefits to employees and other

matters bearing on these factors. The certificate of formation

of Acclaim reflects that Duane was an initial member of the

>The parties do not say whether they have found or even searched for cases involving entities like Acclaim. Nor do

they engage in much discussion of cases involving public hospitals.

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board of directors and as such was entitled to indemnification

and limitation of liability. Doc. 68, Ex. A. It might well be

that these factors would counsel against allowing qualified

immunity to be asserted. See, e.g., Gasca v. Lucio, No. 1:20-CV-

160, 2021 WL 4198405, at *7-8 (S.D. Tex, May 24, 2021).

In sum, if the detailed inguiry discussed above is now

reguired, Duane simply has not provided sufficient evidence to

show that she is entitled to assert the defense of qualified

immunity. The court is not persuaded however, despite the

parties’ agreement, that Duane bears such a burden. To the

court’ knowledge, there has never been a question but that a

government employee is entitled to assert qualified immunity.

See, e.g., Harlow, 457 U.S. at 818. The employee simply has to

claim qualified immunity and establish that her acts were -

undertaken within the scope of her authority. United States v.

Burzynski Cancer Research Inst., 819 F.2d 1301, 121310 (5th Cir.

1987); Lion Bustos v. Wilson, 834 F.2d 504, 507 (5th Cir. 1987).

A hospital district is a governmental entity and members of

its staff are government actors. Bustillos v. Ei Paso Cnty.

Hosp. Dist., 891 F.3d 214, 220 (5th Cir, 2018); Hill Scott v.

Dallas Cnty. Hosp. Dist., No. 3:08-CV-600-0, 2010 WL 71038, at

*6 (N.D. Tex. Jan. 7, 2010). Acclaim is a governmental unit

under Texas law. Tex. Health & Safety Code § 281.0565(c}. Duane

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is an employee of Acclaim. Doc. 68 at Appx. 25, 4 7. Thus, Duane

is arguably a government employee.® If so, Duane can assert

qualified immunity if she can establish that her acts pertinent

to this case were undertaken within the scope of her

discretionary authority. Cronen v. Tex. Dep’t of Human Servs.,

977 F.2d 934, 939 (5th Cir. 1992). As plaintiffs point out,

Duane fails to address the matter in her motion. Doc. 72 at 4-6.

An official acts within her discretionary authority when

she performs non-ministerial acts within the boundaries of her

official capacity. Cherry Knoll, L.L.c. v. Jones, 922 F.3d 309,

318 (5th Cir. 2019}. Non-ministerial acts are those “not

pursuant to specific orders, or spelled out in minute detail

beforehand,” but requiring “careful deliberation and the

exercise of [her] judgment.” Tamez v. City of San Marcos, 118

F.3d 1085, 1092 (5th Cir. 1997).

Generally, medical professionals exercise considerable

judgment in their treatment of patients. Kassen v. Hatley, 887

S.W.2d 4, 9 (Tex. 1994), However, government service imposes

constraints and responsibilities on such providers that private

practitioners do not have. For example, government doctors have

less latitude in choosing patients. Id. at 10. And, in this

The parties do not discuss whether being an employee of Acclaim makes Duane a government employee. The court

notes that JPS earlier represented to the court that Duane was an independent contractor. Doc. 19 at 11-12, Plaintiffs

did not dispute that status. Doc. 27 at 9-10,

15

case, Acclaim (and therefore Duane) was required to furnish

professional medical services to all patients of JPS. Doc. 68 at

Appx. 13, § 1.1. In other words, services could not be refused

to such a patient. But that is what Duane is alleged to have

done—not only refused to treat but took away treatment from a

JPS patient. Arguably, that was not a decision she had the

authority to make.’ In any event, Duane has not submitted any

evidence to explain why she acted as she did, much less to

establish that she was acting within her discretion. Giving

piaintiffs the benefit of the doubt, there could have been any

number of reasons aside from the exercise of medical discretion

that caused Duane to act as she did.

Finally, even if Duane had established that she is entitled

to invoke the defense of qualified immunity, the court agrees

with plaintiffs that, if the facts are as alleged, Duane

violated a clearly established right to due process before

removing life support from Berman, Supreme Court precedent at

the time made clear that end of life decisions are subject to

due process. See, e.g., Cruzan by Cruzan v. Director, Mo. Dep’t

of Health, 497 U.S. 261 (1990). “Historically, this guarantee of

due process has been applied to deliberate decisions of

? This strikes the court as a different argument than the one made in cases like Cronen, where the Fifth Circuit

rejected the argument that the defendants acted outside their discretionary authority because they failed to follow or

correctly apply federal food stamp regulations.

16

government officials to deprive a person of life, liberty, or

property.” Daniels v. Williams, 474 U.S. 327, 331 (1986) (citing

cases). That the due process clause was intended to secure the

individual from the arbitrary exercise of the powers of

government is a “traditional and common-sense notion.” Id. And,

it has long been recognized that an essential principle of due

process is that a deprivation of life, liberty, or property must

be preceded by notice and an opportunity for hearing appropriate

to the nature of the case. Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 542 (1985). Although plaintiffs have not pointed

to a case establishing the exact notice and opportunity required

here, it cannot be disputed that some notice and opportunity: to

be heard were required yet none was given. The court is

satisfied that every reasonable physician would have known that

he or she could not walk into a patient’s room and pull Che plug

without any prior notice as is alleged to have happened here.

VI.

Order

For the reasons discussed herein, the court ORDERS that

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Duane’s motion for summary judgment be, and is hereby, denied.

SIGNED March 11, 2022.

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J MCBRYDE

efior United States Distr#¥t Judge

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