Jenkins v. United States ( 2021 )

Case: 20-10041 Document: 00515998391 Page: 1 Date Filed: 08/27/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 27, 2021
No. 20-10041
Lyle W. Cayce
Summary Calendar
Clerk
David C. Jenkins,
Plaintiff—Appellant,
versus
United States of America,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-918
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
David C. Jenkins, federal prisoner # 09013-078, appeals the district
court’s grant of summary judgment in favor of the United States dismissing
his medical malpractice claim filed pursuant to the Federal Tort Claims Act
(FTCA). He alleged that prison medical staff and outside medical providers
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10041 Document: 00515998391 Page: 2 Date Filed: 08/27/2021
No. 20-10041
committed medical malpractice by failing to provide hernia-repair surgery in
a timely manner and failing to provide proper care before and after the
surgery.
The district court granted summary judgment based on Jenkins’s
failure to put forward evidence from an expert to support his claims. We
review a grant of summary judgment de novo. Nickell v. Beau View of Biloxi,
L.L.C., 636 F.3d 752, 754 (5th Cir. 2011).
State law controls the liability for medical malpractice under the
FTCA. Ellis v. United States, 673 F.3d 367, 372 (5th Cir. 2012). Under Texas
law, the plaintiff in a medical malpractice action must prove: (1) the
physician’s duty to act according to an applicable standard of care, (2) a
breach of the governing standard, (3) an injury, and (4) causation. Quijano v.
United States, 325 F.3d 564, 567 (5th Cir. 2003). “[E]xpert testimony is
necessary to establish causation as to medical conditions outside the common
knowledge and experience of [the finder of fact].” Ellis, 673 F.3d at 373
(internal quotation marks and citation omitted); see also Hannah v. United
States, 523 F.3d 597, 601 (5th Cir. 2008).
Jenkins has not shown that the district court should have applied the
deliberate indifference standard instead of the negligence standard. The
deliberate indifference standard applies to claims concerning the denial of
adequate medical care for a serious medical need in violation of the Eighth
Amendment. See Gobert v. Caldwell, 463 F.3d 339, 345-46 (5th Cir. 2006).
Jenkins’s complaint raised a claim under the FTCA, which authorizes civil
actions for damages for injuries caused by the negligence of a government
employee. See Ellis, 673 F.3d at 372. Further, contrary to his argument,
Jenkins was required to present expert testimony to establish the applicable
standard of care and to show how the care he received breached that
standard. See Hannah, 523 F.3d at 601-02; see also Quijano, 325 F.3d at 567.
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Case: 20-10041 Document: 00515998391 Page: 3 Date Filed: 08/27/2021
No. 20-10041
To the extent that Jenkins argues that expert testimony was not required
because the treatment for a hernia is common knowledge, his argument lacks
merit. We have held that claims concerning surgical care and decisions about
medication, like those Jenkins raised, must be supported by expert testimony.
See Hannah, 523 F.3d at 601-02.
Moreover, the district court did not abuse its discretion in denying
Jenkins’s motion for the appointment of an expert under Federal Rule of
Evidence 706 because the purpose of appointing an expert under Rule 706 is
to benefit the court, not to benefit a particular party. See Hannah, 523 F.3d
at 600.
Jenkins has not established that the district court erred in granting
summary judgment because he did not present expert testimony supporting
his medical malpractice claim. See Nickell, 636 F.3d at 754; Hannah, 523 F.3d
at 601-02. Accordingly, the district court’s judgment is AFFIRMED.
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