     Case: 11-51225     Document: 00511891064         Page: 1     Date Filed: 06/19/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           June 19, 2012

                                     No. 11-51225                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



JAMES LEE BRADFIELD,

                                                  Plaintiff - Appellant
v.

UNITED STATES OF AMERICA, through its agency the Department of
Veteran’s Affairs,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:11-CV-35


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant James Bradfield, a veteran of the U.S. Navy, appeals
the district court’s grant of summary judgment in favor of the government on his
claim for damages under the Federal Tort Claims Act. Bradfield alleges that the
Department of Veteran’s Affairs (the “VA”) negligently failed to provide him with




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 11-51225

proper medical treatment. Because Bradfield failed to present sufficient evidence
to survive summary judgment, we AFFIRM.
                       FACTS AND PROCEEDINGS
      Bradfield is a disabled veteran who, during the relevant period, was
treated at the VA hospital in Waco, Texas. Since 1983, Bradfield has been
diagnosed with a mental disorder, alternatively labeled schizophrenia or
schizoaffective disorder, and since 1995 he has received full VA disability
benefits. The parties agree that Bradfield’s disorder requires the use of
antipsychotic medication, but Bradfield disagrees with his physician about the
best drug for treating his condition. Bradfield alleges that the medication his
doctor has prescribed, aripiprazole, has caused him to develop a pre-diabetic
metabolic disorder, and he repeatedly asked the VA to prescribe a different
antipsychotic.
      On December 8, 2010, Bradfield filed suit against the United States under
the Federal Tort Claims Act (“FTCA”). The district court granted summary
judgment in favor of the government. This timely appeal followed.
                                 DISCUSSION
      We review a grant of summary judgment de novo, applying the same
standard as the district court. Summary judgment is appropriate when the
evidence, viewed in the light most favorable to the nonmoving party, presents
no genuine issue of material fact and shows that the moving party is entitled to
judgment as a matter of law. See Jackson v. Cal-Western Packaging Corp., 602
F.3d 374, 377 (5th Cir. 2010).
      The FTCA is a limited waiver of the United States’ sovereign immunity
that allows “civil actions for damages against the United States for personal
injury or death caused by the negligence of a government employee under
circumstances in which a private person would be liable under the law of the
state in which the negligent act or omission occurred.” Hannah v. United States,

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                                  No. 11-51225

523 F.3d 597, 601 (5th Cir. 2008). Liability for claims made under the FTCA is
therefore determined under substantive state law. Texas medical malpractice
law governs the issue of the VA’s liability on Bradfield’s negligence claim. See id.
      Under Texas law, a plaintiff must prove four elements to establish liability
in a medical malpractice suit: “(1) the physician’s duty to act according to an
applicable standard of care; (2) a breach of that standard of care; (3) injury; and
(4) causation.” Id. Moreover, Texas law requires a plaintiff to produce expert
testimony to establish the standard of care and its breach. Id. Although
Bradfield asserts that the medication he has been prescribed is causing negative
side-effects that could be avoided with different medications, he has not
produced any expert testimony to establish the relevant standard of care or that
such standard of care was breached. In fact, the only expert testimony in the
record indicates that the prescribed medication is less likely than the
alternatives to cause the side-effects of which Bradfield complains.
                                 CONCLUSION
      For the reasons given above, the judgment of the district court is affirmed.




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