De Paz Gonzalez v. Duane

| Uo, Die baal COURT

| NORTHERN DISTRICT OF TEXAS

PED

pont □□

IN THE UNITED STATES DISTRICT COURT | 56P23 2022 |

NORTHERN DISTRICT OF TEXAS (bie

FORT WORTH DIVISION i CLERE, U5. PBisTRICT COURT

BV en ce tne nee

BERMAN DE PAZ GONZALEZ AND §

EMERITA MAR'TINEA-TORRES, §

INDIVIDUALLY AND AS HEIRS, §

AND ON BEHALF OF THE ESTATE OF §&8

BERMAN DE PAZ-MARTINEZ, §

§

Plaintiffs, §

§

VS. § NO. 4:20-CV-072-A

§

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

§

Defendants,

MEMORANDUM OPINION AND ORDER

Came on for consideration the motion of defendant Theresa

M. Duane, M.D. (“Duane”), for summary judgment. The court,

having considered the motion, the response of plaintiffs, Berman

DePaz Gonzalez and Emerita Martinez-Torres, the reply, the

record, and applicable authorities, finds that the motion should

be granted.

IT.

Background

Plaintiffs summarize their case as follows:

1. This case is about euthanasia.

2. Moré specifically, the Defendants intentionally

euthanized Plaintiff‘s{sic] son, by physically

removing a breathing tube from his body without his

consent or the consent of his parents.

3. Defendants thereby violated: (1) the rights to

life and liberty inherent in the United States

Constitution; and (2) rights to life, Liberty, and

property created by Texas law.

4, Defendants did so without providing due process

sufficient to satisfy the Fourteenth Amendment of the

United States Constitution, or even providing the

lesser (constitutionally insufficient) process

required by state law.

5, Therefore, Plaintiff [{sic] hereby assert claims

under 42 U.S.C. § 1983, as set forth below.

Doc.! 46 at 2. As facts, plaintiffs allege in their amended

complaint that:

On March 29, 2018, Berman DePaz-Martinez (“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, §f 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.

Id. 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. { 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

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

father that the doctors had gotten together and decided to take

Berman off life support. Id. 4 21. Duane disconnected Berman

with the full expectation that extubation would result in

Berman’s death. Id. {¢ 36.

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

employed Duane. Docs. 58 & 59. Plaintiffs have dismissed their

claims brought on behalf of Berman’s estate. Docs. 9 & 11. The

only remaining claims are those of Plaintiffs against Duane

under 42 U.S.C. § 1983.

If.

Grounds of the Motion

Duane asserts four grounds in support of her motion for

summary judgment. First, there is no genuine issue of material

fact that the decision to remove Berman from the ventilator did

not require notice and an opportunity to be heard. Second, there

is no genuine issue of material fact that Berman’s injuries were

not survivable. Third, there is insufficient evidence to show

that Duane’s conduct was motivated by evil intent or reckless or

callous indifference. And, fourth, Duane is entitled to

qualified immunity. Doc. 79.

Tit.

Facts Established by Undisputed Summary Judgment Evidence

Duane graduated magna cum laude from State University of

New York at Buffalo School of Medicine in 1995. Doc. 81 at 84.

She completed seven years of post-doctoral residencies and an

additional fellowship in trauma and critical care. Id. In 2002,

she became board certified by the American Board of Surgery in

Surgical Critical Care. Id. She received her Texas medical

license in 2014, which has remained in good standing. Id. She is

also certified in advanced cardiac life support and advanced

trauma life support. Id. at 85. She has lectured and written

extensively in the area of critical care and trauma and has

conducted extensive clinical research in that field. Id.

Extubation is the final step of liberating a patient from

mechanical ventilation so that the patient can breathe on his

own. ‘Doc. 81 at 85. As a general rule, the longer a patient is

intubated, the more the patient is at risk for seriously adverse

outcomes. Id. Generally, a patient is gradually weaned off

mechanical ventilation until the patient can maintain sufficient

ventilation and oxygenation. Id. The patient should be able to

protect against aspiration during spontaneous breathing and

should be able to maintain a clear airway. Id. Several commonly

use@ indicators for the propriety of extubation include whether

a patient’s airway is patent, the presence of a cough/gag

reflex, and the strength of the patient’s cough (measured as

cough peak expiratory flow rate), increased sputum volume, and

impaired neurologic function. Id. Universally accepted threshold

levels of cough strength, consciousness, and suctioning

frequency have not been established. Id. Not all factors must be

present for extubation to be indicated. Id. Whether extubation

is proper is decided on a case by case basis. Id. at 86. One

factor that is highly correlated with successful extubation is

the “rapid shallow breathing index” (“RSBI”), which is described

as the ratio of respiratory rate to tidal volume. Id. A

threshold of less than 105 breaths/min/L is associated with

weaning success, whereas a greater RSBI is highly predictive of

weaning failure. Id. at 86, 101. Duane’s research on the use of

RSBI in determining whether to extubate patients has been

published in peer-reviewed journals. Id. at 86. RSBI is widely

accepted and used as a critically important factor in

determining whether extubation is appropriate. Id.

Berman was admitted to JPS early on March 29, 2018, after

jumping from a moving vehicle that was going approximately 45

miles per hour. He had severe injuries and was completely

unresponsive. Doc. B1 at 57-62, 86. He was assessed by a number

of physicians and surgeons, one of whom assessed his prognosis

as grim. Id. at 60, 87. All of the doctors who examined Berman

recognized that his injuries were non-survivable. Id. at 10, 48,

56, 60, 87-94. A nurse practitioner noted that the plan was to

wean Berman off oxygen and the ventilator settings as tolerated.

Id. at 37, 55, 88. Duane agreed. Id. at 88.

On March 30, 2018, an acute care nurse met with Berman's

family for a physician and pastoral care conference Facilitated

by an interpreter. Doc. 81 at 31, 92. The nurse explained that

Berman had suffered a traumatic brain injury and that his

prognosis was poor. Id. The family agreed to categorize Berman

as “DNR-A” meaning that his heart would not be restarted and he

would not be re-intubated if he went into cardio pulmonary

arrest.? Id, at 93. The nurse met with them again the next day to

answer questions and discuss comfort measures. Berman’s status

as DNR-A did not change. Id. at 19-20, 94.

On April 1, 2018, Berman met the parameters for extubation.

His RSBI was 67. Doc. 81 at 95. His cough and gag reflex were

intact. Id. He exhibited spontaneous respirations with

ventilator support and clearer breathing sounds in his lungs.

Id. at 14-15. Duane believed that extubation was ciinically

indicated, that it would reduce the likelihood of complications

2 At the time of their depositions, plaintiffs did not recall having made such a decision. Doc. 81 at 122-23, 133-34,

arising from extended intubation, and that it was reasonably

likely that Berman would continue breathing on his own. Id. at

17, 95. The nurse agreed with that assessment. Id. Duane

conveyed her beliefs to Berman's father, who understood Duane to

say that with or without the tube, Berman would remain the same.

Id. at 95, 125-26. Duane did not believe it was necessary to get

permission to extubate Berman. Id. at 96. Her expert agreed that

was not standard to ask permission to extubate a patient who

meets clinical extubation parameters. Id. at 104-05. Further,

extubation of Berman was clearly standard protocol and not

intended as a purposeful end of life measure. Id. Duane’s

decision was an appropriate exercise of her medical decision-

making and discretion. Id. at 105.

Duane ordered Berman’s extubation. Doc. 81 at 65, 96.

Berman became hypoxic and expired quickly. Id. at 19, 96. The

general surgeon pronounced Berman dead. Id. He noted that Berman

had made extubation parameters the day before. Id. at 12. The

family requested an autopsy. Id. The Tarrant County Medical

Examiner concluded that Berman’s cause of death was blunt force

trauma of head due to fall from moving motor vehicle. Id. at 78.

IV.

Applicable Standard of Review

A. Summary Judgment

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

that the court shall 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. BP. 56fc}) (*A

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

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

materials in the record... .”). If 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 (Sth 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. If the record taken as a

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

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.

3In 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.

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).

Aithough 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.J.

Stevenson & Co., 749 F.2d 223, 228 (5th 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).

B. 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 reasonabieness of the defendant’s actions assessed in

10

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 (Sth Cir. 1992). “{A]n allegation of malice

is not sufficient to defeat immunity if 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

1]

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

v. City of Cedar Park, 950 F.2d 272, 276-80 (5th 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 (5th 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 (Sth Cir. 2010); Foster v. City of

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

12

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 S. 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 a

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 gualified immunity defense.

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

Vv.

Analysis

A. Violation of § 1983

As made plain by the amended complaint, plaintiffs’ claims

are based on the premise that Duane intentionally deprived

Berman of life without due process. As they recognize, the

guarantee of due process applies to “deliberate decisions of

government officials to deprive a person of life.” Doc. 85 at 5

(quoting the court’s March 11, 2022 memorandum opinion and

order, Doc. 75 at 16-17 in turn quoting Daniels v. Williams, 474

U.S. 327, 331 (1986)). In this case, however, they have not come

forward with summary judgment evidence to show that Duane made

13

such a deliberate decision to deprive Berman of life,

consequently violating his right to due process. Rather, they

simply rely on the premise that Duane could not have extubated

Berman without their informed consent.* Duane, on the other hand,

has shown by her own testimony and that of her expert that

extubation was medically indicated and appropriate and that

consent was not required based on the facts at hand.

Medical judgments, such as the parameters for extubation of a

patient, are matters beyond the general experience and common

knowledge of laymen. Thus, expert testimony is required. Johnson

v. Arkema, Inc., 685 F.3d 452, 471 (5th Cir. 2012); Selig v.

B.M.W. of N. Am., Inc., 832 S.W.2d 95, L100 (Tex. App.—Houston

[14th Dist.] 1992, no writ). Plaintiffs offer none.

As for damages, as the Fifth Circuit noted in an earlier

opinion in this action, plaintiffs’ ability to recover damages

derives solely from § 1988's incorporation of remedies available

to survivors under the Texas wrongful death and survival

statutes. DePaz v. Duane, 858 F. App’x 734, 737-38 (5th Cir.

2021). See Brazier v. Cherry, 293 F.2d 401, 405 (5th Cir.

1961) (holding that 42 U.S.C. § 1988 incorporates state wrongful

death and survival statutes for those making claims under

4 They simply state as a matter of course, without any supporting authority, that “due process is violated by the very

act of a unilateral decision by a physician.” Doc. 85 at 16.

14

§ 1983). Here, only survivor damages are at issue since

plaintiffs have dismissed the claims brought on behalf of

Berman’s estate. Docs. 9 & 11; Doc. 46 at 1n.1.

-To recover survivor damages in Texas under § 1983,

plaintiffs must prove that Duane caused Berman’s death. Slade v.

City of Marshall, 814 F.3d 263, 264-65 (5th Cir. 2016). A “lost

chance” of survival is not enough. Id. (citing Kramer v.

Lewisville Mem’l Hosp., 858 S.W.2d 397, 404 (Tex. 1993)). That

is, the law does not permit a claimant to recover under the

survival statute when a medical provider’s conduct decreases the

patient’s chance of survival where preexisting iliness or

injuries made the patient’s chance of survival improbable.

Kramer, 858 $.W.2d at 404-07. Here, the summary judgment

evidence establishes that Berman’s injuries were not survivable.

Plaintiffs do not address this ground of the motion.

Punitive damages are available under § 1983 only where the

defendant acted with evil motive or intent, or was reckless or

callously indifferent to the federally protected rights of

others. Smith v. Wade, 461 U.S. 30, 56 (1983). As noted by the

case cited by plaintiffs, the latter standard “at a minimum

require[s] recklessness in its subjective form.” Doc. 85 at 20

{quoting Kohler v. Johnson, 396 F. App’x 158, 162 (5th Cir.

2010) (in turn, quoting Kolstad v. Am Dental Ass’n, 527 U.S. 526,

1S

536 {1999)}. Plaintiffs have not cited any probative summary

judgment evidence to establish a genuine fact issue as to

Duane’s subjective motive. Rather, as Berman’s father understood

Duane’s explanation, Berman would remain the same with or

without the tube. Doc. 81 at 124-25. Speculation by anonymous

sources and unauthenticated materials do not meet the test. York

v. Toone, No. 6:17-00076-ADA-JCM, 2018 WL 8619800, at *1 (W.D.

Tex. Dec. 10, 2018). See Francois v. General Health Sys., 459 F.

Supp. 3d 710, 725-27 (M.D. La. 2020) (nurses’ notes without

sufficient foundation and not timely designated as expert

opinion excluded).

Finally, although the parties do not address the issue,

there seems to be uncertainty whether plaintiffs, in any event,

would be able to recover punitive damages. See General Chem.

Corp, v. De La Lastra, 852 5.W.2d 916, 924 (Tex. 1993), and

Hofer v. Lavender, 679 S.W.2d 470, 476 (Tex. 1984), See also

Scoggins v. Southwestern Elec. Serv. Co., 434 S.W.2d 376 (Tex.

App.-Tyler 1968, writ ref’d n.r.e.). As noted, the estate claims

have been dismissed. In addition, under Texas law, exemplary

damages are not recoverable absent actual damages. Nabours v.

Longview Savs. & Loan Ass'n, 700 S.W.2d 901, 904 {Tex. 1985).

Without causation, plaintiffs are not able to recover actual

damages.

16

B. Qualified Immunity*

As noted in the court's earlier memorandum opinion and

order, Doc. 75 at 10, 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 ali of the

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

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

Having reviewed pertinent legal authorities, the court is

unable to conclude that there was a common law tradition of

immunity for doctors working for the government at the time of

the enactment of § 1983. The Supreme Court indicated in dicta

that “apparently” the law provided “a kind of immunity for

certain private defendants, such as doctors or lawyers who

5 For the reasons discussed, supra, plaintiffs have not raised genuine fact issues as to a violation of a clearly

established right or as to damages. The court nevertheless includes a discussion of qualified immunity, which is a

separate and dispositive reason for granting summary judgment.

17

performed services at the behest of the sovereign.” Richardson

v. McKnight, 521 U.S. 399, 407 (1997). However, the case it

cites, Tower v. Glover, 467 U.S. 914, 921 (1984), refers only to

a lawyer performing government work. The treatise cited, J.

Bishop, Commentaries on Non-Contract Law, §§ 704, 710 (1889),

simply provides a general discussion of duty of care, not a

discussion of government service. Likewise, it does not appear

that the Fifth Circuit has closely considered whether such

immunity existed at common law. Rather, in Perniciaro, the Court

declined to follow authorities of sister circuits finding that

there was no firmly rooted tradition of immunity,*® concluding

instead that Filarsky “require[d] a different focus.” 901 F.3d

at 252, n.9. It then considered the three purposes served by

qualified immunity and determined that doctors performing public

duties were entitled to assert qualified immunity. 901 F.3d at

253-55.

As this court previously noted, a hospital district is a

governmental entity and members of its staff are governmental

actors. Doc. 75 at 14 (citing Bustillos v. El Paso Cnty. Hosp.

Dist., 891 F.3d 214, 220 (Sth Cir. 2018); Hill Scott v. Dallas

6 Sanchez cites additional sister circuit authorities recounting that no circuit that has examined the issue has

uncovered a common law tradition of immunity for doctors working under color of state law. 995 F.3d at 468 (citing

Tanner v. McMurray, 989 F.3d 860 (10th Cir. 2021); Estate of Clark v, Walker, 865 F.3d 544 (7th Cir, 2017);

McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012)). Although Sanchez refers to the cases as concerning medical

providers in a correctional setting, they are not so limited.

18

Cnty. Hosp. Dist., No. 3:08-CV-0600-0, 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 was an

employee of Acclaim at the time of the actions at issue here

and, thus, a government employee.

As for the purposes of qualified immunity, the discussion

in Perniciaro applies. 901 F.3d at 253-55. There is no evidence

that Duane was part of a large private entity subject to

marketplace pressure. Rather, Acclaim was created exclusively to

benefit JPS, advancing its mission to deliver healthcare to the

public. Doc. 81 at App. 159-60. Accordingly, as the court is

bound by Fifth Circuit precedent, Duane is entitled to assert

the defense of qualified immunity.

At the time the court denied Duane’s previous motion for

summary judgment, the allegation was that she removed life

support from Berman intending that he would die. The court □

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

violated a clearly established right to due process before

removing life support from Berman.” Doc. 75 at 16.’ At this

point, however, the summary judgment record establishes that the

facts are not as alleged in the amended complaint. Rather, Duane

The court recognizes that its statement was probably made at too high a level of generality. See White v. Pauly,

137 S. Ct, 548, 552 (2017)(the established law must not be defined too generally; it must be particularized to the

facts of the case).

19

has shown that, within her medical discretion, she made the

decision to remove unnecessary treatment from Berman, not Co end

life support, because he met the clinical parameters for

extubation and was capable of breathing on his own. Duane

reasonably believed this would reduce the risk of complications

caused by prolonged intubation. Doc. 81 at App. 95-96.

Only a licensed physician can provide medical care, Doctors

Hosp. at Renaissance, Ltd. V. Andrade, 493 S.W.3d 545, 548 (Tex.

2016). Whether particular diagnostic techniques or forms of

treatment are indicated is a “classic example of a matter for

medical judgment.” Estelle v. Gamble, 429 U.S. 97, 107 (1976};

Domino v. Tex. Dep’t Crim. Justice, 239 F.3d 752, 756 (5th Cir.

2001). Duane has established as a matter of law that her conduct

was within the scope of her discretionary authority. Doc. 81 at

App. 96, 104-05. The decision to extubate Berman was a treatment

decision based on the facts as they existed at the time. Her

expert agrees that the decision was a proper one that did not

require permission from Berman or the family. Id. at 104.

Plaintiffs have not cited to any case involving similar facts

establishing that a doctor in Duane’s position was required to

seek permission to extubate a patient.® Nor have they come

® Plaintiffs have not established the existence of a special custodial or other relationship between Berman and JPS

giving rise fo a constitutional duty to provide him medical care. See Kinzie vy. Dallas Cnty. Hosp. Dist., 106 F.

App’x 192, 195 (Sth Cir, 2003), Without a special relationship, there was no constitutional duty to protect Berman.

20

forward with any evidence to show that every reasonable medical

doctor would have known that extubation was improper under the

circumstances. Duane is entitled to qualified immunity.

Mullenix, 577 U.S. at 11; Malley, 475 U.S. at 341.

VI.

Order

The court ORDERS that Duane’s motion for summary judgment

be, and is hereby, granted, and that plaintiffs take nothing on

their claims against Duane.

SIGNED September 23, 2022.

J McBRYDE

Spnior United State# District Judge

Reynolds v. Parkland Mem’| Hosp., No. 3:12-CV-4579-N-BN, 2012 WL 7153849, at *3 (N.D. Tex, Dec. 28,

2012){noting that an allegation of deliberate indifference may be sufficient to violate a constitutional duty, but is not

sufficient to create a constitutional duty).

21