     Case: 19-30150      Document: 00515114877         Page: 1    Date Filed: 09/12/2019




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

                                    No. 19-30150                             FILED
                                  Summary Calendar                   September 12, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
KENYON J. GARRETT,

              Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:17-CV-784


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Kenyon J. Garrett appeals the summary judgment dismissing his
medical malpractice action against the United States arising out of his father’s
treatment at the Overton Brooks VA Medical Center (“OBVAMC”). Garrett
brought two claims based on (1) an alleged failure to obtain informed consent
and (2) medical negligence. The district court granted summary judgment to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30150
the United States on both claims because Garrett failed to show any genuine
issue as to the material element of causation. Specifically, the court found that
Garrett offered no expert testimony on causation other than the testimony of
a psychiatrist who opined only on his father’s mental condition.
      We review a summary judgment de novo, viewing the facts in the
nonmovant’s favor. Estate of Sanders v. U.S., 736 F.3d 430, 435 (5th Cir. 2013).
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a).
      “Under the Federal Tort Claims Act, the controlling substantive law is
provided by the state where the [alleged] negligent act occurred,” in this case
Louisiana. Dimitry v. U.S., 893 F.2d 666, 668 (5th Cir. 1989). Under Louisiana
law, “[a] plaintiff can only recover damages for [an informed consent claim] if
causation is proven. Causation is established only if adequate disclosure
reasonably would be expected to have caused a reasonable person to decline
treatment because of the disclosure.” Jackson v. State, 938 So. 2d 699, 690 (La.
2006); see generally LA. REV. STAT. ANN. § 40:1157.1 (addressing standards for
informed consent). With respect to a medical malpractice claim, Louisiana law
requires proof (1) of the applicable standard of care, (2) that the defendant
breached the standard of care, and (3) that the defendant’s breach caused the
plaintiff’s injury. See LA. REV. STAT. ANN. § 9:2794. Expert testimony on breach
and causation is required in circumstances where obvious negligence could not
be inferred by a lay person. See Pfiffner v. Correa, 643 So. 2d 1228, 1233 (La.
1994) (“Expert testimony is not required where the physician does an obviously
careless act, such as fracturing a leg during an examination, amputating the
wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge
in a patient’s body, from which a lay person can infer negligence.”); see also,
e.g., Schultz v. Guoth, 57 So. 3d 1002, 1008 (La. 2011) (under Pfiffner, only a
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                                 No. 19-30150
“case of obvious negligence . . . requires no expert testimony to prove the
elements of her malpractice claim”); Cleveland v. United States, 457 F.3d 397,
403 (5th Cir. 2006) (explaining “[i]t is generally necessary [under Louisiana
law] to use an expert witness to prove a medical malpractice claim”) (internal
quotes and citations omitted).
      We find no error in the summary judgment. To the extent Garrett
challenges whether OBVAMC obtained informed consent or was negligent in
treating his father, the summary judgment record fails to demonstrate any
genuine issue that OBVAMC’s alleged negligence caused his father’s
“recurring infections, personal injury, and [ ] untimely death.” Although
Garrett argues on appeal that actions of OBVAMC employees were the “direct
cause” of his father’s premature death, he points to no expert evidence
supporting that claim. Instead, Garrett offers only a psychiatrist’s report on
his father’s mental condition and Garrett’s own opinions as a registered nurse.
Because this is not an obvious case in which medical negligence could be
inferred by a layperson, Garrett was required under Louisiana law to prove
causation through expert testimony. Schultz, 57 So. 3d at 1008; Pfiffner, 643
So.2d at 1234. Garrett failed to do so. Furthermore, we find no abuse of
discretion in the district court’s refusal to consider Garrett’s own filings as
expert opinions. See, e.g., United States v. Clements, 73 F.3d 1330, 1334 (5th
Cir. 1996) (reviewing district court’s “decision to exclude expert testimony for
an abuse of discretion”); Cleveland, 457 F.3d at 404 & n.4 (discussing standards
under Louisiana Revised Statute § 9:2794(D) for qualifying as an expert in a
medical malpractice case).
      The grant of summary judgment is AFFIRMED.




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