# De Paz Gonzalez v. Duane

> District Court, N.D. Texas · September 23, 2022

URL: https://www.frixlaw.com/law-library/cases/10452164

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** September 23, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

| 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10452164. Public record. Not legal advice.