IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50899

Summary Calendar

CONNIE LEE LEON,

Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas, San Antonio

USDC No. 5:10-CV-162

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:

*

Connie Lee Leon, pro se, appeals the summary judgment dismissing her

medical malpractice and battery claims against the United States under the

Federal Tort Claims Act. The United States has moved for summary affirmance,

which Leon opposes.

Leon asserted claims for medical malpractice and battery, claiming that

she suffered complications following an allegedly unnecessary medical procedure

United States Court of Appeals

Fifth Circuit

F I L E D

January 26, 2011

Lyle W. Cayce

Clerk

 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.

Case: 10-50899 Document: 00511362019 Page: 1 Date Filed: 01/26/2011
No. 10-50899

provided by a urologist at Brooke Army Medical Center. Leon moved for

summary judgment, asserting that the government’s failure to respond to her

request for admissions resulted in deemed admissions entitling her to judgment

as a matter of law. The magistrate judge, before whom the parties had

consented to proceed, held that Leon moved for summary judgment before the

government’s deadline for responding to her request for admissions had passed

and, consequently, there were no deemed admissions.

The government also moved for summary judgment on the ground that

Leon failed to provide expert medical testimony to prove a breach of the

applicable standard of care, as required by Texas law, where the alleged

malpractice occurred. See 28 U.S.C. § 1346(b)(1); Hannah v. United States, 523

F.3d 597, 601 (5th Cir. 2008). The magistrate judge held that because Leon did

not designate an expert on the standards of care and because the deadline to

designate experts had passed, the government was entitled to summary

judgment on Leon’s medical malpractice claim. The magistrate judge further

held that Leon’s battery claim based on allegedly unconsented-to procedures was

an inseparable part of the rendition of medical services and, consequently, she

was also required to provide expert testimony for that claim. See Williams v.

Walker, 995 S.W.2d 740, 741-42 (Tex. App. Eastland 1999).

Leon does not dispute that she was required to provide expert testimony.

Instead, she explains that she believed that a letter from Colonel Mary Ann

McAfee, Deputy Commander for Clinical Services at Brooke Army Medical

Center, apologizing “for our failure to meet your expectations of care,” was

sufficient to serve as a medical expert report. Leon asserts that, had she known

that the McAfee letter was insufficient, she would have identified another

medical expert. She asserts that she proved her ability to do so by providing a

letter dated September 13, 2010 (approximately three weeks after the grant of

2

Case: 10-50899 Document: 00511362019 Page: 2 Date Filed: 01/26/2011
No. 10-50899

summary judgment) from Dr. Bruce L. Halbridge, which was attached to her

notice of appeal.

Upon consideration of Leon’s brief, the record, and the applicable law, we

are convinced that the district court correctly granted summary judgment for the

government. Accordingly, the government’s motion for summary affirmance is

GRANTED and the judgment of the district court is AFFIRMED.

3

Case: 10-50899 Document: 00511362019 Page: 3 Date Filed: 01/26/2011