Cletis Anderson, Jr. v. USA

Filing

Cletis Anderson, Jr. v. USA

Doc. 0

Case: 09-11237

Document: 00511183511

Page: 1

Date Filed: 07/23/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-11237 S u m m a r y Calendar July 23, 2010 Lyle W. Cayce Clerk

C L E T I S DONNELL ANDERSON, JR., P la in t if f -A p p e lla n t v. U N IT E D STATES OF AMERICA, D e fe n d a n t -A p p e lle e

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 1:08-CV-96

B e fo r e REAVLEY, GARZA, and BENAVIDES, Circuit Judges. P E R CURIAM:* C le t is Donnell Anderson, Jr., federal prisoner # 33797-048, appeals the s u m m a r y -ju d g m e n t dismissal of his Federal Tort Claims Act (FTCA) lawsuit a g a i n s t the United States for negligence resulting from the delay of a p r o fe s s io n a lly recommended hernia repair surgery. T h is court reviews de novo the district court's grant of summary judgment. Whittaker v. BellSouth Telecomms., Inc., 206 F.3d 532, 534 (5th Cir. 2000). Summary judgment is appropriate if the evidence shows that "there is no
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

Dockets.Justia.com

Case: 09-11237

Document: 00511183511 Page: 2 No. 09-11237

Date Filed: 07/23/2010

g e n u in e issue as to any material fact and that the movant is entitled to ju d g m e n t as a matter of law." FED. R. CIV. P. 56(c)(2). The FTCA authorizes civil actions for damages against the United States fo r personal injury or death caused by the negligence of a government employee u n d e r circumstances in which a private person would be liable under the law of th e state in which the negligent act or omission occurred.

28 U.S.C. §§ 1346(b)(1), 2674.

State law controls the liability for medical

m a l p r a c t ic e under the FTCA. Ayers v. United States, 750 F.2d 449, 452 n.1 (5 t h Cir. 1985). Under Texas law, in a medical malpractice action, the plaintiff b e a r s the burden of proving (1) the physician's duty to act according to an a p p lic a b le standard of care, (2) a breach of that standard of care, (3) injury, and (4 ) causation. Quijano v. United States, 325 F.3d 564, 567 (5th Cir. 2003). Expert testimony is generally required to prove the applicable standard of care. Id. Expert testimony is not necessary where "the mode or form of treatment is a matter of common knowledge or is within the experience of the layman." Hood v . Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977). B e c a u s e the mode of treatment for an inguinal hernia is not a matter of c o m m o n knowledge or within the general experience of a layman, Anderson was r e q u ir e d to present expert testimony to establish the applicable standard of care a n d to show how the care he received breached that standard. See Hood, 554 S . W . 2 d at 165-66. Anderson, however, failed to provide expert testimony

r e g a r d in g the applicable standard of care. Anderson therefore has not shown t h a t there is a genuine issue of material fact as to the standard of care. See FED. R . CIV. P. 56(c)(2). Accordingly, the judgment of the district court is AFFIRMED.

2