     Case: 09-60739     Document: 00511070088          Page: 1    Date Filed: 04/05/2010




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

                                                  FILED
                                                                             April 5, 2010

                                     No. 09-60739                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



SANGERNETTA MASON, A1C

                                                   Plaintiff - Appellant
v.

UNITED STATES OF AMERICA

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             No. 1:08CV185-HSO-JMR


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        In this case, we consider whether the district court erred in granting a
motion for summary judgment for the defendant in this medical malpractice
case, when the plaintiff’s expert report failed to establish the necessary elements
for a prima facie case of medical negligence.             For the following reasons, we
affirm.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-60739    Document: 00511070088      Page: 2   Date Filed: 04/05/2010

                                  No. 09-60739

                                        I.
      In October of 2003 and September of 2004, plaintiff’s father, Jinkins
Mason, Jr., was hospitalized at the Gulf Coast Veterans Health Care System
(VA Hospital) in Biloxi, Mississippi. According to the plaintiff, the physicians
treating Mason, Jr. negligently failed to monitor the toxic effects of certain
medications they had prescribed to him. Mason, Jr. died of liver failure in
October of 2004.
      Plaintiff Sangernetta Mason brought this action against the United
States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-
2680, for the wrongful death of her father. The district court granted summary
judgment to the United States, finding that Mason’s claims failed as a matter of
law because she did not proffer sufficient evidence to establish a prima facie case
of medical malpractice. Specifically, the district court examined Mason’s expert
medical evidence and determined that this evidence did not establish any of the
elements of a medical negligence claim as required by Mississippi law.
                                       II.
      We review a grant of summary judgment de novo, applying the same legal
standard used by the district court. Chacko v. Sabre, Inc., 473 F.3d 604, 609 (5th
Cir. 2006). Summary judgment is proper when the evidence demonstrates that
“there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c)
      In this case, Mason sued the United States for medical negligence under
the FTCA. The FTCA permits 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.
Quijano v. United States, 325 F.3d 564, 567 (5th Cir. 2003). In FTCA cases, the
federal courts rely on the substantive law of the state where the alleged wrongful
act occurred. See 28 U.S.C. § 1346(b)(1); Johnson v. Sawyer, 47 F.3d 716, 727

                                         2
   Case: 09-60739    Document: 00511070088      Page: 3   Date Filed: 04/05/2010

                                  No. 09-60739

(5th Cir. 1995) (en banc).     Here, because the alleged medical malpractice
occurred in Mississippi, Mississippi law applies.
      To present a prima facie case of medical malpractice under Mississippi
law, a plaintiff must prove by expert medical testimony: (1) the standard of care;
(2) a breach of the standard of care; (3) a causal connection between the breach
and the injury; (4) the extent of plaintiff’s damages. McCaffrey v. Puckett, 784
So.2d 197, 206 (Miss. 2001). Mason opposed the motion for summary judgment
by filing a single medical report by Dr. A. Bari, a physician practicing in Guyana.
Dr. Bari’s brief report recounted Mason, Jr.’s past medical history and opined:


             There is no confirmation or serological studies to confirm what
      type hepatitis had [sic] the deceased suffered from and Biloxi
      veteran medical center stated clearly on the record they were not
      able to make a diagnosis.
             The medical record stated that the deceased, when he was
      admitted on14th September, 2004. Mentioned that he had history
      of heavy alcohol ingestion in the past, denied using any hepatoxic
      medication.
             From medical record it was evident that the deceased have
      [sic] used zocor, glipizide and fosinopril which are offending agent
      [sic] even if they are used separately, and there is high possibility
      of drug interaction if they are used with other medication.
             In my opinion Mr. Jinkins Jr [sic] Mason have [sic] not died
      from hepatitis as was stipulated on his record but possibly died from
      severe drug reaction namely simvastatin “Zocor.”


Dr. Bari’s report fails to establish any of the elements for medical
negligence as required under Mississippi law. As such, the district court
did not err in granting the United States’s motion for summary judgment.
Accordingly, the judgment of the district court is AFFIRMED.




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