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

                                                 FILED
                                                                         November 23, 2009

                                     No. 08-11212                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



LARRY CHAPMAN

                                                   Plaintiff - Appellant
v.

UNITED STATES OF AMERICA

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 4:06-CV-426


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Pro se Plaintiff-Appellant Larry Chapman appeals the district court’s
grant of summary judgment in favor of Defendant-Appellee United States
(“Government”) on Chapman’s Federal Tort Claims Act (“FTCA”) claim.
Chapman argues the Government negligently failed to obtain written consent
for his leg amputation. Because Chapman fails to show that a reasonable person




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-11212

would have refused medical treatment despite the risks inherent in the decision,
we affirm.
      Chapman, a federal prisoner, filed a complaint pursuant to the FTCA 1
alleging that the Government (via the Federal Bureau of Prisons) failed to
provide appropriate medical treatment for his left leg, resulting in amputation.
The Government moved for summary judgment, arguing that because Chapman
did not designate an expert witness, he would have no evidence to prove the
essential elements of his medical malpractice claim. The district court granted
the motion, finding that it could not ascertain the standard of care, or any breach
of that care, without expert testimony. The district court further held that even
if it considered Chapman’s argument that he failed to consent to his amputation
(raised for the first time in response to summary judgment), Texas law still
requires expert testimony regarding the applicable standards of care. Chapman
now appeals.
      We review a grant of summary judgment de novo and affirm the district
court if the pleadings and evidence show that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law.
F ED. R. C IV. P. 56(c); Celotex Corp. v. Catrett., 477 U.S. 317, 322-23 (1986). The
moving party bears the burden of establishing that there are no genuine issues
of material fact. Id. However, if the dispositive issue is one on which the
nonmoving party will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the record contains
insufficient proof concerning an essential element of the nonmoving party’s
claim. Id. at 325; see also Lavespere v. Niagara Mach. & Tool Works, Inc., 910



      1
        Chapman also initially raised claims pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) and 42 U.S.C. §§ 1983, 1985,
and 1986. The district court previously dismissed all claims except the FTCA claim, and
Chapman does not appeal this decisions.

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F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986)).
       The FTCA permits “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.” Quijano v.
United States, 325 F.3d 564, 567 (5th Cir. 2003). In FTCA cases, the federal
courts rely on the substantive law of the state where the alleged wrongful acts
occurred. See 28 U.S.C. § 1346(b)(1); Johnson v. Sawyer, 47 F.3d 716, 727 (5th
Cir. 1995) (en banc). Here, because the alleged medical malpractice occurred in
Fort Worth, Texas, Texas law applies.
       Under Texas law, Chapman asserts a medical malpractice claim, arguing
that the appropriate standard of medical care would not foreclose his right to
refuse amputation, regardless of the risk involved, and that the Government
breached that standard by failing to obtain his explicit consent to the procedure.2
“The failure of a doctor to fully inform a patient of the risks of surgery is a
negligence cause of action.” McKinley v. Stripling, 763 S.W.2d 407, 409 (Tex.
1989); see also T EX. C IV. P RAC. & R EM. C ODE § 74.101 (stating that for failure-to-
consent suits, “the only theory on which recovery may be obtained is that of
negligence in failing to disclose the risks or hazards that could have influenced
a reasonable person in making a decision to give or withhold consent”). As with
any negligence cause of action, to establish liability against the Government for
failure to obtain consent to amputate, Chapman must show “a duty, a breach of
that duty, [that] the breach was a proximate cause of injuries, and that damages
occurred.” McKinley, 763 S.W.2d at 409.



       2
        Medical records at the time of the amputation note that Chapman “was counseled
regarding [] his disease and initially was resistant to the fact that he would need [above-knee
amputation] but following discussions with several physicians consented to the [amputation].”
However, there is no evidence of written consent in the record.

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      Although Chapman arguably could establish the other elements, he cannot
establish proximate cause, namely, that the Government’s breach of the duty to
obtain informed consent prior to amputation was the proximate cause of his
injuries. Under Texas law, proximate cause in a failure-to-consent action is
established only if “a reasonable person, not a particular plaintiff, would [not]
have consented to the treatment or procedure had he been fully informed of all
inherent risks which would influence his decision.” McKinley, 763 S.W.2d at
410. If a reasonable person would consent to the procedure despite the risks and
hazards, the patient cannot establish “injury” from the procedure. Chapman has
not shown that a reasonable person would have refused amputation of the left
leg after being fully informed of the risks inherent in the decision. Chapman
arrived in prison with a history of coronary artery disease, quadruple coronary
artery bypass surgery, hypertension, type II diabetes mellitus, elevated
cholesterol, peripheral vascular disease, and back surgery, none of which
improved while he was incarcerated.        Furthermore, he refused to follow
physicians’ advice regarding diet and smoking. At the time of amputation,
Chapman’s leg was suffering from a severely diminished blood supply. Skin
grafts from a prior surgical procedure had come off and the leg was cold with
black spots, indicating early gangrene. Given the severity of his injury and the
lack of other available treatment options, Chapman has not shown that a
reasonable person would have refused amputation despite the risks inherent in
the decision.
      Moreover, Chapman did not file an expert report to support his
malpractice claim. T EX. C IV. P RAC. & R EM. C ODE § 74.351 states that “[i]n a
health care liability claim, a claimant shall, not later than the 120th day after
the date the original petition was filed, serve on each party or the party's
attorney one or more expert reports.” A “health care liability claim” is



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      a cause of action against a health care provider or physician for
      treatment, lack of treatment, or other claimed departure from
      accepted standards of medical care, or health care, or safety or
      professional or administrative services directly related to health
      care, which proximately results in injury to or death of a claimant,
      whether the claimant’s claim or cause of action sounds in tort or
      contract.

T EX. C IV. P RAC. & R EM. C ODE § 74.001(a)(13). As Chapman is claiming that the
Government departed from “accepted standards of medical care” that
proximately resulted in his injury, he was required to file an expert report in this
case. See Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (requiring an
expert report in a lack-of-consent case and noting “the Legislature intended
health care liability claims to be scrutinized by an expert or experts before the
suit can proceed”). Because Chapman failed to meet this threshold requirement
for his lawsuit, the district court properly dismissed his case.
      The Government argues in the alternative, and for the first time on
appeal, that this court lacks subject matter jurisdiction to hear this case because
lack of consent to a medical procedure under Texas law can be pled as a battery,
see Murphy, 167 S.W.3d at 838, which would be barred in this suit because the
United States has not waived its sovereign immunity with respect to battery
claims asserted against non-law enforcement personnel. 28 U.S.C. § 2680(h).
However, T EX. C IV. P RAC. & R EM. C ODE § 74.101 notes that in a health care
liability claim based on a failure to disclose, “the only theory on which recovery
may be obtained is that of negligence in failing to disclose the risks or hazards
that could have influenced a reasonable person in making a decision to give or
withhold consent” (emphasis added). Given the language of the statute, a Texas
plaintiff may be barred from pleading a battery cause of action in a failure-to-
disclose claim. The Texas Supreme Court did not reach this issue in Murphy.
And unlike the plaintiff in Murray, Chapman does not allege a battery cause of



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action in his complaint. Accordingly, we decline to reach the issue of whether a
battery cause of action still exists in Texas health care liability claims based on
a failure to disclose, and we AFFIRM the district court’s decision for the reasons
noted above.
      Additionally, Chapman has filed a Motion for Leave to File Reply Brief
Out of Time. Chapman’s motion presents no compelling reason for this court to
permit his untimely filing of his reply brief. “The court greatly disfavors all
extensions of time for filing reply briefs. The court assumes that the parties
have had ample opportunity to present their arguments in their initial briefs
and that extensions for reply briefs only delay submission of the case to the
court.” 5th Cir. R. 31.4.4. Accordingly, Chapman’s motion is DENIED.




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