### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 60760 Summary Calendar

TODD MASSEY,

Plaintiff

– Appellant

v.
UNITED STATES OF AMERICA,

Defendant

– Appellee

Appeal from the United States District Court for the Southern District of Mi ssissippi USDC No. 5:11

- C V

- 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, Mississ ippi. On March 27, 2007, Massey went to the prison’s medical

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 29, 2014 Lyle W. Cayce Clerk Case: 13-60760 Document: 00512611554 Page: 1 Date Filed: 04/29/2014No. 13

- 60760 clinic, complaining of severe stomach pain. Massey was se en by a nurse, but not a physician. E ight days after his initial visit, the pain became “unbearable,” so Massey returned to the clinic. At that time, Massey was treated by Norma N atal, M.D., a prison staff doctor. Dr. Natal suspected that
Mas s ey had gal l 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 pep tic ulcer. The next d ay, on April 4, 2007, Massey returned to see Dr. N atal 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 discover ed intraperitoneal air, which is an indicator of perforation in either the stom ach or the colon. Dr. Fiser immediately performed surgery on Massey. D uring the surgery , Dr. Fiser confirmed that Massey had a perforated gast r ic 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 t his law suit pursuant t o the Federal Tort Claims Act (“FTCA”), alleging medical malpractice on the part of the prison medical staff in failing to pr ovide 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 f or 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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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). S ummary judgment is appropriate when , viewing all evidence in the light most favorable to the non

- mov ing 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 permi ts a reasonable jury to return a v erdict 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

a gainst 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 applie s 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 plaint iff 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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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. 2 d at 957 (citation omitted). The failure to present expert testimony on any one of the three ele ments is grounds for summary judgment in the defendant’s favor. Sanders , 736 F.3d at 436. Essentially, “t he success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plain tiff’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 grea ter 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 prop er medical care on March 27,
2007 , when he first reported his sever e stomach pains, the peptic ulcer would not have ruptured and required surgery. However, he has not presented sufficient medical evidence to esta blish this causal link. Massey relies on Dr. Fiser’s testimony that a “gnawing” pain, which he had experienced on March 27, i s 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 t o whether treatment on March 27 would h ave 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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- 60760 In suppo rt 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

. Ye t , Dr. Natal also testified that Massey would have ha d 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 test s, including the test for the H. pylori bacterium. Thus, approximately a week would have passed before s he became
aware t hat 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 tw o 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 v isit to the medical clinic. Because Massey has no t 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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