                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                        ____________________

                               No. 02-30752
                             Summary Calendar
                           ____________________

                       GEORGE LUPO; DAWN LUPO,

                                                  Plaintiffs-Appellants,

                                  versus

                      UNITED STATES OF AMERICA,

                                                     Defendant-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
                            (01-CV-2304)
_________________________________________________________________
                           March 7, 2003

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80

(FTCA), George Lupo and Dawn Lupo, his wife, filed suit against the

United States for damages, claiming Mr. Lupo received negligent

medical   treatment   at   the   New   Orleans   Veterans   Administration

Medical Center (Center). The Lupos allege: Mr. Lupo was diagnosed

with hepatitis C in 2000, resulting from his receiving defective

blood at the Center in 1966.           They contend that the Center was


     *
        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that this opinion should not be published and is not precedent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.
negligent because it failed to properly test the donated blood

administered to Mr. Lupo or to warn him that the blood had not been

tested.      The    district    court    granted   summary      judgment   to     the

Government, holding that the Center did not owe a duty to Mr. Lupo

either to perform a specific test for hepatitis, or to warn him

about the risk of contracting hepatitis C.

     A    summary    judgment    is     reviewed   de   novo,    using    the   same

standard applicable       in    the     district   court.       E.g.,    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 claimed medical malpractice occurred in Louisiana, its law

controls.     Tindall, 901 F.2d at 55.

     Under that law, a hospital must “protect a patient from ...

external circumstances peculiarly within the hospital’s control”.

Hunt v. Bogalusa Cmty. Med. Ctr., 303 So.2d 745, 747 (La. 1974).

See also Hemingway v. Ochsner Clinic, 608 F.2d 1040, 1049 (5th Cir.

1979).    Louisiana cases have consistently held the duty of a blood

bank is to:    “screen[ ] donors and test[ ] blood in accordance with

the latest accepted guidelines in effect at th[e] time”, and

“follow[ ] the normal accepted procedures in administering the

blood”.     Juneau v. Interstate Blood Bank, Inc. of Louisiana, 333

                                          2
So. 2d 354, 356 (La. Ct. App.), cert. denied, 337 So. 2d 220 (La.

1976).   See also Chauvin v. Sisters of Mercy Health Sys., St.

Louis, Inc., 818 So. 2d 833, 846-47 (La. Ct. App.), cert. denied,

825 So. 2d 1194 (La. 2002); Martin v. Southern Baptist Hosp., 352

So. 2d 351, 353 (La. Ct. App. 1977), cert. denied, 354 So. 2d 210

(La. 1978).

     The Government established that it was not until 1986, 20

years after the transfusion at issue, that blood banks in the

United States began routinely testing donated blood to determine

whether it might be tainted with the hepatitis virus.     The Lupos

failed to carry their burden of showing that, in 1966, hospitals

were either performing or were required to perform any particular

test for hepatitis on donated blood, either under the “accepted

guidelines in effect at that time” and/or “the normal accepted

procedures” followed by hospitals.   Juneau, 333 So. 2d at 356.   The

Lupos also failed to prove that, in 1966, hospitals were warning or

were required to warn their patients about the risk of contracting

hepatitis from infected blood.   See Chauvin, 818 So. 2d at 845.

                                                        AFFIRMED




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