United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 21-11258 

____________ 

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

United States Court of Appeals 

Fifth Circuit 

FILED 

September 6, 2023 

Lyle W. Cayce 

Clerk 

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2 

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 

_____________________ 

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

 

_____________________ 

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 

_____________________ 

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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8 

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 lifesustaining 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 

_____________________ 

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. 

_____________________ 

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 PazMartinez, 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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