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”), claimed 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, which were consolidated.
Texas Advanced Directives Act
Under the Texas Advanced Directives Act (“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.” 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 TADA. 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.” 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.
In its Per Curium unreported decision filed on September 6, 2023, the United States Court of Appeals for the Fifth Circuit (“Federal Appellate Court”) stated: “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. 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 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.”
Source Gonzalez v. Duane, No. 21-11258.
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