     Case: 18-20071      Document: 00515014826         Page: 1    Date Filed: 06/28/2019




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

                                    No. 18-20071                            FILED
                                  Summary Calendar                      June 28, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
SANDRA G. HALE,

              Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; MICHAEL DEBAKEY MEDICAL
CENTER (VA HOSPITAL); CHRISTOPHER R. SANDLES; ROBERT
MCDONALD; PAUL WENZSLAWSH, PA; DOCTOR JOHN MA, M.D.,

              Defendants - Appellees


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:17-CV-226


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM:*
       Sandra Hale—a disabled veteran—sued Dr. John Ma, a doctor at
DeBakey VA Medical Center, and Paul Wenzlawsh, a physician assistant
there, for misdiagnosing and mistreating her shoulder injury. Because they
are federal employees and she brought a tort claim, she could not sue them
individually, but she could sue the federal government under the Federal Tort



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20071
Claims Act. 28 U.S.C. § 2679(b)(1). The district court later granted summary
judgment to the government and we review that decision de novo. Coleman v.
United States, 912 F.3d 824, 828 (5th Cir. 2019).
      The FTCA allows private citizens to sue the federal government when
federal employees commit torts for which a private person would be liable
under state law. Hannah v. United States, 523 F.3d 597, 601 (5th Cir. 2008).
Though Hale strains against this in her briefs, her complaint alleges a health
care liability claim. When someone claims they are harmed by a medical
professional whose care falls below the accepted standards of medical care, that
claim is for health care liability. TEX. CIV. PRAC. & REM. § 74.001(a)(13); see
also Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012) (describing the
expansive application of Texas’s Medical Liability Act).      In Texas, expert
testimony is generally required to establish the standard of care, to determine
whether the medical professional breached it, and to determine whether that
breach caused the alleged injuries. Ellis v. United States, 673 F.3d 367, 373
(5th Cir. 2012) (quoting Jelinek v. Casas, 328 S.W.3d 526, 538 (Tex. 2010)). Of
course, not every case requires it: if a surgeon operates on the wrong knee or
leaves a sponge inside, no expert testimony is required. Haddock v. Arnspiger,
793 S.W.2d 948, 951 (Tex. 1990). But Hale does not present such an obvious
case; she needed an expert.
      The only one she tried to provide is herself. According to her designation,
Hale served as a nurse for over 35 years. But the expert must be a doctor. TEX.
CIV. PRAC. & REM. CODE §§ 74.401(a), 74.403(a). Texas law does not consider
a nurse sufficiently qualified to establish causation in a medical negligence
case. Id. at § 74.403(a). Hale thus could not serve as her own expert and,
failing to produce another, summary judgment was appropriate.
      Hale also argues that the government was dilatory in filing its answer to
her amended complaint, requiring a default judgment. The district court was
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                                 No. 18-20071
well within its discretion in accepting the answer. See FED. R. CIV. P. 15(a)(3)
(establishing 14-day response period to amended pleadings “unless the court
orders otherwise”)
      AFFIRMED.




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