     Case: 10-50899 Document: 00511362019 Page: 1 Date Filed: 01/26/2011




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

                                                 FILED
                                                                          January 26, 2011

                                     No. 10-50899                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



CONNIE LEE LEON,

                                                   Plaintiff - Appellant
v.

UNITED STATES OF AMERICA,

                                                   Defendant - Appellee




                    Appeal from the United States District Court
                   for the Western District of Texas, San Antonio
                              USDC No. 5:10-CV-162


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Connie Lee Leon, pro se, appeals the summary judgment dismissing her
medical malpractice and battery claims against the United States under the
Federal Tort Claims Act. The United States has moved for summary affirmance,
which Leon opposes.
       Leon asserted claims for medical malpractice and battery, claiming that
she suffered complications following an allegedly unnecessary medical procedure


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50899 Document: 00511362019 Page: 2 Date Filed: 01/26/2011



                                 No. 10-50899

provided by a urologist at Brooke Army Medical Center.         Leon moved for
summary judgment, asserting that the government’s failure to respond to her
request for admissions resulted in deemed admissions entitling her to judgment
as a matter of law.    The magistrate judge, before whom the parties had
consented to proceed, held that Leon moved for summary judgment before the
government’s deadline for responding to her request for admissions had passed
and, consequently, there were no deemed admissions.
      The government also moved for summary judgment on the ground that
Leon failed to provide expert medical testimony to prove a breach of the
applicable standard of care, as required by Texas law, where the alleged
malpractice occurred. See 28 U.S.C. § 1346(b)(1); Hannah v. United States, 523
F.3d 597, 601 (5th Cir. 2008). The magistrate judge held that because Leon did
not designate an expert on the standards of care and because the deadline to
designate experts had passed, the government was entitled to summary
judgment on Leon’s medical malpractice claim. The magistrate judge further
held that Leon’s battery claim based on allegedly unconsented-to procedures was
an inseparable part of the rendition of medical services and, consequently, she
was also required to provide expert testimony for that claim. See Williams v.
Walker, 995 S.W.2d 740, 741-42 (Tex. App. Eastland 1999).
      Leon does not dispute that she was required to provide expert testimony.
Instead, she explains that she believed that a letter from Colonel Mary Ann
McAfee, Deputy Commander for Clinical Services at Brooke Army Medical
Center, apologizing “for our failure to meet your expectations of care,” was
sufficient to serve as a medical expert report. Leon asserts that, had she known
that the McAfee letter was insufficient, she would have identified another
medical expert. She asserts that she proved her ability to do so by providing a
letter dated September 13, 2010 (approximately three weeks after the grant of



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                                 No. 10-50899

summary judgment) from Dr. Bruce L. Halbridge, which was attached to her
notice of appeal.
      Upon consideration of Leon’s brief, the record, and the applicable law, we
are convinced that the district court correctly granted summary judgment for the
government. Accordingly, the government’s motion for summary affirmance is
GRANTED and the judgment of the district court is AFFIRMED.




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