     Case: 09-40272     Document: 00511160360         Page: 1     Date Filed: 06/30/2010




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

                                                  FILED
                                                                           June 30, 2010

                                       No. 09-40272                        Lyle W. Cayce
                                                                                Clerk

KAMAL K. PATEL,

                                           Plaintiff - Appellant

v.

RESTY BALUYOT; DOCTOR’S HOSPITAL; UNIDENTIFIED PARTY,
Unknown Number of John Does,

                                           Defendants - Appellees


                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:02-CV-603


Before GARWOOD, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Kamal K. Patel, a federal prisoner, appeals the district
court’s summary judgment dismissal of his medical malpractice claim brought
under Texas law against Dr. Resty Baluyot and Doctor’s Hospital. Additionally,
he appeals the denial of his motions for (1) appointment of a medical expert, (2)




        *
        Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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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costs and attorney’s fees, and (3) sanctions. We affirm the district court’s grant
of summary judgment and dismiss Patel’s other claims for lack of jurisdiction.
                                        I.
      On May 15, 2001, Patel injured his right biceps muscle playing basketball.
On July 6, 2001, he was examined by an orthopedic surgeon who, believing that
Patel might have a rupture of the distal, right biceps tendon, recommended that
an MRI be taken of Patel’s right elbow. The MRI was done at Doctor’s Hospital
and read by Dr. Baluyot on January 17, 2002, approximately eight months after
the injury.    Dr. Baluyot originally reported that the MRI showed no
demonstrable injuries or abnormalities. Two months later, Patel asked Dr.
Baluyot to reexamine the MRI. Upon reexamination of the MRI, Dr. Baluyot
determined that there was “a partial and almost total rupture of the biceps
tendon.”
      On September 9, 2002, Patel filed suit against Dr. Baluyot and Doctor’s
Hospital alleging that Dr. Baluyot was negligent in interpreting the MRI and
failing to correctly diagnose the injury to his biceps tendon, and that Doctor’s
Hospital was vicariously liable for Dr. Baluyot’s diagnosis under the theory of
respondeat superior. Patel alleged that as a result of Dr. Baluyot’s original
diagnosis, his prison treatment program switched from prescribed rest of the
arm to exercise, which resulted in additional injury that would not have occurred
had Dr. Baluyot correctly diagnosed his injury in his initial examination.
Furthermore, Patel alleged that the delay in receiving the proper diagnosis
prevented him from repairing the tendon through surgery because the delay
allowed scar tissue to form that made the surgery impossible.
      Patel filed an application to proceed in forma pauperis (“IFP”) along with
a motion for the appointment of a medical expert. Those motions were referred

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to Magistrate Judge Radford, who concluded that Patel was not entitled to a
court-appointed expert merely to help him prove his claim. In the same order,
Magistrate Judge Radford also denied Patel’s motion to proceed IFP. Later,
Patel filed a motion for costs and attorney’s fees under Federal Rule of Civil
Procedure 4(d)(2) for the costs of formal service of process on Dr. Baluyot. He
also filed a motion requesting that the court sanction Dr. Baluyot. Agreeing
partially with Patel, Magistrate Judge Radford awarded him $240.79 in
expenses—which represented his costs for effecting service upon Dr. Baluyot,
minus attorney’s fees. In the same order, Magistrate Judge Radford denied
Patel’s motion for sanctions against Dr. Baluyot. Patel never filed any objections
to the orders issued by Magistrate Judge Radford.
      Dr. Baluyot and Doctor’s Hospital filed motions for summary judgment,
asserting that they were entitled to judgment as a matter of law because Patel
could not prove the necessary elements of his claim without expert testimony.
Their motions were referred to Magistrate Judge Giblin, who concluded that
Texas state law provided the standard of care; and that under it, without proof
from an expert, Patel could not create a material issue of fact as to whether his
treatment fell below the necessary standard of care. Consequently, Magistrate
Judge Giblin recommended that the district court grant the motions for
summary judgment. Patel timely filed written objections to the report and
recommendation. The district court overruled Patel’s objections, accepted the
magistrate judge’s report and recommendation, and granted the motions. At no
point during the litigation did Patel ever assert that Doctor’s Hospital should be
assessed costs for failing to waive service of process.
      Patel appeals the district court’s grant of summary judgment and asserts
that it erred in not assessing costs against Doctor’s Hospital for failing to waive

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service of process. Patel also appeals Magistrate Judge Radford’s orders in
which he refused to appoint an expert, refused to award Patel attorney’s fees,
and refused to issue sanctions against Dr. Baluyot.
                                        II.
      Patel argues that Magistrate Judge Radford abused his discretion by
failing to appoint a medical expert under Federal Rule of Evidence 706, failing
to award him attorney’s fees, and failing to issue sanctions against Dr. Baluyot.
Before addressing the merits of Patel’s arguments, we must first determine
whether we have jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
As a general rule, the findings of a magistrate judge are not final, appealable
orders within the meaning of 28 U.S.C. § 1291 and may not be appealed to this
court directly. See Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir. 1984) (per
curiam). Instead, a party dissatisfied with a magistrate judge’s decision must
instead obtain relief by objecting to the magistrate judge’s findings and
recommendations, thereby compelling the district court to review his objections
de novo. See 28 U.S.C. § 636(b)(1)(C); United States v. Cooper, 135 F.3d 960, 963
(5th Cir. 1998); cf. F ED. R. C IV. P. 72. But, there is a limited exception to this
general rule: “Under 28 U.S.C. § 636(c)(1), a district court, with the voluntary
consent of the parties, may authorize a magistrate [judge] to conduct proceedings
and enter final judgment in a case; such judgment is then appealable to the
circuit court directly.” Trufant, 729 F.2d at 309.
      After thoroughly reviewing the record, we find no evidence that Patel
consented to Magistrate Judge Radford’s jurisdiction to enter a final judgment
on any of the orders that he now appeals. The record reveals no filings seeking
a ruling by the district court to any objections raised by Patel concerning
Magistrate Judge Radford’s denial of his motions. Nor does the record reveal

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any ruling by the district court concerning the denial of the motions. Absent the
consent of the parties to the magistrate judge’s authority to enter a final
judgment or a final, appealable order entered by the district court, we lack
jurisdiction to consider Patel’s challenge to the magistrate judge’s denial of his
motions.    See United States v. Renfro, 620 F.2d 497, 500 (5th Cir. 1980).
Accordingly, this portion of Patel’s appeal must be dismissed for lack of
jurisdiction.
      As far as Patel’s contention that the district court erred by not assessing
costs against Doctor’s Hospital for failing to waive service, our review of the
record indicates that Patel never moved for such costs to be assessed against the
hospital.   Accordingly, because Patel’s “motion” for costs against Doctor’s
Hospital was never before the district court nor ruled upon by it, there is no
issue in regards to that “motion” to consider on appeal, and we dismiss it as well
for lack of jurisdiction.
                                         III.
      We turn now to the grant of summary judgment, which we review de novo.
Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1326 (5th Cir. 1996). Summary
judgment is appropriate where, considering all the allegations in the pleadings,
depositions, admissions, answers to interrogatories, and affidavits, and drawing
inferences in the light most favorable to the nonmoving party, there is no
genuine issue of material fact and the moving party is entitled to judgment as
a matter of law. F ED. R. C IV. P. 56.
      We apply Texas substantive law in our analysis of Patel’s medical




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malpractice claim.1 Aubris Res. LP v. St. Paul Fire & Marine Ins. Co., 566 F.3d
483, 486 (5th Cir. 2009); see also Erie R.R. v. Tompkins, 304 U.S. 64, 78–79
(1938). Under Texas law, in a medical malpractice action, the plaintiff bears the
burden of proving (1) a duty by the physician or hospital to act according to an
applicable standard of care; (2) a breach of that standard of care; (3) injury; and
(4) causal connection between the breach of care and the injury. Quijano v.
United States, 325 F.3d 564, 567 (5th Cir. 2003). The plaintiff must establish the
standard of care as a threshold issue before the factfinder may consider whether
the defendant breached that standard of care to the extent it constituted
negligence. Id. “Unless the mode or form of treatment is a matter of common
knowledge or is within the experience of the layman, expert testimony will be
required” to meet the plaintiff's burden of proof. Hood v. Phillips, 554 S.W.2d
160, 165–66 (Tex. 1977).          In other words, subject to the narrow exception
discussed above, a plaintiff must produce expert testimony to prove the
applicable standard of care, a breach of that standard, and a causal connection
between the breach and the harm suffered in medical malpractice cases in
Texas. See Hannah v. United States, 523 F.3d 597, 601–02 (requiring expert
testimony to show standard of care and breach under Texas law); Guile v. United
States, 422 F.3d 221, 225 (5th Cir. 2005) (requiring expert testimony to show
breach and causation under Texas law).
       Patel contends that any layperson could discern that the standard of care
was not met in his case because Dr. Baluyot revised his interpretation after


       1
         Patel argues that Texas substantive law should not have been applied in this case by
the district court. This argument has no merit because it is well established that under the
Erie doctrine federal courts sitting in diversity apply state substantive law. Gasperini v. Ctr.
for Humanities, Inc., 518 U.S. 415, 427 (1996).

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reexamining Patel’s MRI. A layperson is not equipped with the specialized
knowledge and understanding necessary to determine whether Dr. Baluyot
complied with the applicable standard of care when he interpreted his MRI. See,
e.g., Haddock v. Arnspiger, 793 S.W.2d 948, 954 (Tex. 1990); Shelton v. Sargent,
144 S.W.3d 113, 120–21 (Tex. App.— Fort Worth 2004, pet. denied) (“Medical
decisions about performing and interpreting mammograms, sonograms, biopsies,
and other diagnostic procedures require professional training and are not
common knowledge.”). Furthermore, while Patel suggests that the inconsistency
between the MRI readings is sufficient to establish his case, the chain of
causation between the inconsistency and Patel’s injury is not obvious. As a
result, expert testimony was necessary to establish that any delay resulting from
the inconsistent readings caused further injury or prevented Patel from
attempting to have the tendon surgically repaired. See Columbia Med Ctr. of
Las Colinas v. Hogue, 271 S.W.3d 238, 246 (Tex. 2008).
      In sum, Patel was required to present expert testimony to establish the
applicable standard of care, to show how the care he received breached that
standard, and to establish causation. It is undisputed that Patel neither
designated nor hired an expert to testify on his behalf. By pointing out the need
for, and lack of, expert testimony, Dr. Baluyot and Doctor’s Hospital met their
summary judgment burden.2



      2
         Patel argues that Dr. Baluyot’s affidavit does not constitute competent summary
judgment evidence. His argument is irrelevant to the resolution of this case. Summary
judgment was granted in favor of the Defendants because Patel could not establish facts in
support of his claim, not because of anything said by Dr. Baluyot in his affidavit. See
GeoSouthern Energy Corp. v. Chesapeake Operating Inc., 274 F.3d 1017, 1020 (5th Cir. 2001)
(“Summary judgment is appropriate if the nonmovant fails to establish facts supporting an
essential element of his prima facie claim.”).

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                                     IV.
     For the reasons discussed above, we affirm the district court’s grant of
summary judgment and dismiss Patel’s other claims for lack of jurisdiction.




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