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 Mississippi

USDC No. 5:11-CV-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, Mississippi. On March 27, 2007, Massey went to the prison’s medical 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 29, 2014

Lyle W. Cayce

Clerk

 

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clinic, complaining of severe stomach pain. Massey was seen by a nurse, but 

not a physician. Eight days after his initial visit, the pain became 

“unbearable,” so Massey returned to the clinic. At that time, Massey was 

treated by Norma Natal, M.D., a prison staff doctor. Dr. Natal suspected that 

Massey had gall 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 peptic ulcer.

The next day, on April 4, 2007, Massey returned to see Dr. Natal 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 discovered intraperitoneal 

air, which is an indicator of perforation in either the stomach or the colon. Dr. 

Fiser immediately performed surgery on Massey. During the surgery, Dr. 

Fiser confirmed that Massey had a perforated gastric 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 this lawsuit pursuant to the Federal Tort 

Claims Act (“FTCA”), alleging medical malpractice on the part of the prison 

medical staff in failing to provide 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 for 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). Summary judgment is appropriate 

when, viewing all evidence in the light most favorable to the non-moving 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 

permits a reasonable jury to return a verdict 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 

against 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 applies 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 plaintiff 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. 2d at 957 (citation omitted). The failure to present expert 

testimony on any one of the three elements is grounds for summary judgment 

in the defendant’s favor. Sanders, 736 F.3d at 436. Essentially, “the success 

of a plaintiff in establishing a case of medical malpractice rests heavily on the 

shoulders of the plaintiff’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 greater 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 proper medical care on March 27, 

2007, when he first reported his severe stomach pains, the peptic ulcer would 

not have ruptured and required surgery. However, he has not presented 

sufficient medical evidence to establish this causal link. Massey relies on Dr. 

Fiser’s testimony that a “gnawing” pain, which he had experienced on March 

27, is 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 to whether 

treatment on March 27 would have 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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In support 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. Yet, Dr. Natal also testified that Massey would have had 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 tests, including the test for the H. pylori 

bacterium. Thus, approximately a week would have passed before she became

aware that 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 two weeks to have 

an effect. Additionally, it takes approximately four-to-six weeks for a noncomplicated 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 visit to the medical clinic. 

Because Massey has not 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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