     Case: 09-11237     Document: 00511183511          Page: 1    Date Filed: 07/23/2010




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

                                                 FILED
                                                                            July 23, 2010
                                     No. 09-11237
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

CLETIS DONNELL ANDERSON, JR.,

                                                   Plaintiff-Appellant

v.

UNITED STATES OF AMERICA,

                                                   Defendant-Appellee


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 1:08-CV-96


Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Cletis Donnell Anderson, Jr., federal prisoner # 33797-048, appeals the
summary-judgment dismissal of his Federal Tort Claims Act (FTCA) lawsuit
against the United States for negligence resulting from the delay of a
professionally recommended hernia repair surgery.
        This court reviews de novo the district court’s grant of summary judgment.
Whittaker v. BellSouth Telecomms., Inc., 206 F.3d 532, 534 (5th Cir. 2000).
Summary judgment is appropriate if the evidence shows that “there is no

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-11237    Document: 00511183511 Page: 2          Date Filed: 07/23/2010
                                 No. 09-11237

genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” F ED. R. C IV. P. 56(c)(2).
      The FTCA authorizes 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.
28 U.S.C. §§ 1346(b)(1), 2674.     State law controls the liability for medical
malpractice under the FTCA. Ayers v. United States, 750 F.2d 449, 452 n.1
(5th Cir. 1985). Under Texas law, in a medical malpractice action, the plaintiff
bears the burden of proving (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. Quijano v. United States, 325 F.3d 564, 567 (5th Cir. 2003).
Expert testimony is generally required to prove the applicable standard of care.
Id. Expert testimony is not necessary where “the mode or form of treatment is
a matter of common knowledge or is within the experience of the layman.” Hood
v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977).
      Because the mode of treatment for an inguinal hernia is not a matter of
common knowledge or within the general experience of a layman, Anderson was
required to present expert testimony to establish the applicable standard of care
and to show how the care he received breached that standard. See Hood, 554
S.W.2d at 165-66.     Anderson, however, failed to provide expert testimony
regarding the applicable standard of care. Anderson therefore has not shown
that there is a genuine issue of material fact as to the standard of care. See F ED.
R. C IV. P. 56(c)(2). Accordingly, the judgment of the district court is AFFIRMED.




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