                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS      August 17, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 03-31160
                        Conference Calendar



HERMAN BUSTAMENTE,

                                    Plaintiff-Appellant,

versus

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,

                                    Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                        USDC No. 02-CV-3717
                       --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Herman Bustamente filed suit against the United States for

damages pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 2671-80, alleging that he received negligent medical treatment

at the New Orleans Veterans Administration Medical Center.           He

alleges that he contracted herpes from receiving blood infected

with the virus during heart surgery at the hospital in 1996.

Bustamente contends that the hospital was negligent based upon




     *
       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this opinion should not be published and is not precedent except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.
                             No. 03-31160
                                  -2-

the doctrine of res ipsa loquitur.    Bustamente appeals the

district court’s grant of summary judgment to the Government.

     We review a grant of summary judgment de novo, using the

same standard applicable in the district court.    Melton v.

Teachers Ins. & Annuity Ass’n of America, 114 F.3d 557, 559 (5th

Cir. 1997).    Under the FTCA, the United States is liable for its

torts if a private person would be liable for the same act or

omission under local laws.    28 U.S.C. §§ 1346(b), 2674; see

Tindall v. United States, 901 F.2d 53, 55 (5th Cir. 1990).

Because the alleged medical malpractice in this case occurred in

Louisiana, Louisiana law controls.    See Tindall, 901 F.2d at 55.

     The only evidence offered by Bustamente as proof of the

hospital’s negligence are medical records from his treating

physicians, and those records do not support his allegation that

he contracted herpes from a blood transfusion.    Consequently,

Bustamente has failed to carry his burden of proving the

hospital’s negligence.    See Boutte v. Jefferson Parish Hospital

Service District No. 1, 807 So. 2d 895, 898 (La. App. 5 Cir.),

writ denied, 813 So. 2d 1093 (La. 2002).

     Bustamente’s argument regarding res ipsa loquitur need not

be considered because it is raised for the first time in his

reply brief.    See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.

1994).   Even if the res ipsa loquitur theory were addressed,

however, it would be found unconvincing.    Bustamente’s own

evidence shows that the blood transfusion was not the probable
                          No. 03-31160
                               -3-

cause of his infection and that there were other equally

plausible explanations for his condition.   See Cangelosi v. Our

Lady of the Lake Regional Medical Center, 564 So.2d 654, 660 (La.

1990).

     Accordingly, the judgment of the district court is hereby

AFFIRMED.
