     Case: 13-60760      Document: 00512611554         Page: 1    Date Filed: 04/29/2014




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

                                                                              FILED
                                    No. 13-60760                          April 29, 2014
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
TODD MASSEY,

                                                 Plaintiff – Appellant
v.

UNITED STATES OF AMERICA,

                                                 Defendant – Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 5:11-CV-60


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Todd Massey appeals the district court’s entry of summary judgment in
favor of the United States on his medical malpractice claim. For the following
reasons, we AFFIRM.
       At all times relevant to this appeal, Todd Massey was incarcerated in a
correctional facility operated by the Federal Bureau of Prisons located in Yazoo
City, Mississippi. On March 27, 2007, Massey went to the prison’s medical


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60760
clinic, complaining of severe stomach pain. Massey was seen by a nurse, but
not a physician.     Eight days after his initial visit, the pain became
“unbearable,” so Massey returned to the clinic. At that time, Massey was
treated by Norma Natal, M.D., a prison staff doctor. Dr. Natal suspected that
Massey had gall bladder disease. She prescribed Massey pain medications and
antibiotics to treat gall bladder disease, and she ordered laboratory tests.
Included in the panel was a test for H. pylori bacteria, which, if present, can
indicate that the patient has a peptic ulcer.
      The next day, on April 4, 2007, Massey returned to see Dr. Natal because
his stomach pain had worsened. Dr. Natal referred Massey to the local hospital
for additional testing. Massey was eventually transported to the Mississippi
Baptist Medical Center, where he was treated by Hal Gregory Fiser, M.D. Dr.
Fiser reviewed a CT scan of Massey’s abdomen and discovered intraperitoneal
air, which is an indicator of perforation in either the stomach or the colon. Dr.
Fiser immediately performed surgery on Massey. During the surgery, Dr.
Fiser confirmed that Massey had a perforated gastric ulcer, and he repaired
the perforation. Massey recovered from the surgery, but he continues to suffer
from incisional hernias as a result of the surgery to repair the gastric rupture.
      On April 18, 2011, Massey filed this lawsuit pursuant to the Federal Tort
Claims Act (“FTCA”), alleging medical malpractice on the part of the prison
medical staff in failing to provide treatment for his peptic ulcer. He claims
that had he been seen by a physician during his initial visit to the clinic, his
peptic ulcer would have been identified sooner, thus preventing a rupture and
the need for surgery. The government moved for summary judgment, arguing
that Massey failed to create a genuine issue of material fact as to the causation
prong of his medical malpractice claim.         The district court granted the
government’s motion and entered judgment in its favor. Massey appealed.


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                                 No. 13-60760
      We review a district court’s order granting summary judgment de novo,
applying the same standard as the district court. See Moss v. BMC Software,
Inc., 610 F.3d 917, 922 (5th Cir. 2010). Summary judgment is appropriate
when, viewing all evidence in the light most favorable to the non-moving party,
the record demonstrates that there is no genuine issue of material fact and
that the moving party is entitled to a judgment as a matter of law. See Fed. R.
Civ. P. 56(a); United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285
(5th Cir. 2006). There is a genuine issue of material fact when the evidence
permits a reasonable jury to return a verdict for the nonmoving party. See
Estate of Sanders v. United States, 736 F.3d 430, 435 (5th Cir. 2013).
      The FTCA permits an individual to bring a civil action for damages
against the United States for personal injury 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. See 28 U.S.C. §§ 1346(b)(1), 2674; Hannah v. United States, 523 F.3d
597, 601 (5th Cir. 2008). Here, the alleged act of medical malpractice occurred
in Mississippi, and it is undisputed that Mississippi law applies to Massey’s
claim.
      Under Mississippi law, the plaintiff must establish three elements to
prevail on a medical malpractice claim:
      (1) the existence of a duty by the defendant to conform to a specific
      standard of conduct for the protection of others against an
      unreasonable risk of injury; (2) a failure to conform to the required
      standard; and (3) an injury to the plaintiff proximately caused by
      the breach of such duty by the defendant.
Hubbard v. Wansley, 954 So. 2d 951, 956–57 (Miss. 2007). A plaintiff may not
“simply offer evidence that because injuries arose after an act of negligence
that act of negligence is the cause in fact for those injuries.” Patterson v.
Radioshack Corp., 268 F. App’x 298, 302 (5th Cir. 2008) (unpublished) (per

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                                 No. 13-60760
curiam) (citing Jackson v. Swinney, 140 So. 2d 555, 556–57 (Miss. 1962)).
Instead, he must use expert testimony to establish all three elements.
Hubbard, 954 So. 2d at 957 (citation omitted). The failure to present expert
testimony on any one of the three elements is grounds for summary judgment
in the defendant’s favor. Sanders, 736 F.3d at 436. Essentially, “the success
of a plaintiff in establishing a case of medical malpractice rests heavily on the
shoulders of the plaintiff’s selected medical expert.” Estate of Northrop v.
Hutto, 9 So. 3d 381, 384 (Miss. 2009).
      We recently explained in Sanders that, under Mississippi law, the
plaintiff may only recover on his medical malpractice claim when the evidence
shows “that proper treatment would lead to ‘a greater than fifty (50) percent
chance of a better result than was in fact obtained.’” 736 F.3d at 437 (quoting
Hubbard, 954 So. 2d at 964). Thus, “the ‘expert opinion of a doctor as to
causation must be expressed in terms of medical probabilities as opposed to
possibilities.’” Id. (quoting Univ. Of Miss. Med. Ctr. v. Lanier, 97 So. 3d 1197,
1202 (Miss. 2012)) (emphasis added).
      Massey alleges that had he received proper medical care on March 27,
2007, when he first reported his severe stomach pains, the peptic ulcer would
not have ruptured and required surgery.       However, he has not presented
sufficient medical evidence to establish this causal link. Massey relies on Dr.
Fiser’s testimony that a “gnawing” pain, which he had experienced on March
27, is a symptom of a peptic ulcer. Thus, he concludes that he was suffering
from the ulcer when he first sought medical attention. However, he ignores
the fact that Dr. Fiser expressly stated that he had no opinion as to whether
treatment on March 27 would have prevented the rupture of Massey’s ulcer on
April 4. Massey has not provided evidence that there is more than a fifty
percent probability that his ulcer would not have ruptured had he been treated
sooner. See Sanders, 736 F.3d at 436–37.
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                                  No. 13-60760
      In support of causation, Massey also highlights Dr. Natal’s statement
that she would have provided the same treatment on March 27 as she provided
on April 3 and 4. Yet, Dr. Natal also testified that Massey would have had the
same outcome and experienced a gastric rupture even if he had received
treatment on March 27. She explained that it takes approximately seven days
to receive the results of laboratory tests, including the test for the H. pylori
bacterium. Thus, approximately a week would have passed before she became
aware that Massey had a peptic ulcer.         Even if she had promptly begun
treatment for a peptic ulcer upon receipt of the test results, Dr. Natal testified
that the antibiotics to treat H. pylori require approximately two weeks to have
an effect. Additionally, it takes approximately four-to-six weeks for a non-
complicated ulcer to heal. This testimony is consistent with her statement that
Massey would likely have experienced the same outcome even if he had been
seen by a doctor on his initial visit to the medical clinic.
      Because Massey has not presented evidence sufficient to create a
genuine issue of material fact as to the causation element, his medical
malpractice claim must fail.      Therefore, we AFFIRM the judgment of the
district court.




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