Lupo v. United States ( 2003 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 02-30752
Summary Calendar
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GEORGE LUPO; DAWN LUPO,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(01-CV-2304)
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March 7, 2003
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80(FTCA), George Lupo and Dawn Lupo, his wife, filed suit against the
United States for damages, claiming Mr. Lupo received negligent
medical treatment at the New Orleans Veterans Administration
Medical Center (Center). The Lupos allege: Mr. Lupo was diagnosed
with hepatitis C in 2000, resulting from his receiving defective
blood at the Center in 1966. They contend that the Center was
*
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that this opinion should not be published and is not precedent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.
negligent because it failed to properly test the donated blood
administered to Mr. Lupo or to warn him that the blood had not been
tested. The district court granted summary judgment to the
Government, holding that the Center did not owe a duty to Mr. Lupo
either to perform a specific test for hepatitis, or to warn him
about the risk of contracting hepatitis C.
A summary judgment is reviewed de novo, using the same
standard applicable in the district court. E.g., Melton v.
Teachers Ins. & Annuity Ass’n of America, 114 F.3d 557, 559 (5th
Cir. 1997). Under the FTCA, the United States is liable for its
torts if a private person would be liable for the same act or
omission under local laws. 28 U.S.C. §§ 1346(b), 2674. See
Tindall v. United States, 901 F.2d 53, 55 (5th Cir. 1990). Because
the claimed medical malpractice occurred in Louisiana, its law
controls. Tindall, 901 F.2d at 55.
Under that law, a hospital must “protect a patient from ...
external circumstances peculiarly within the hospital’s control”.
Hunt v. Bogalusa Cmty. Med. Ctr., 303 So.2d 745, 747 (La. 1974).
See also Hemingway v. Ochsner Clinic, 608 F.2d 1040, 1049 (5th Cir.
1979). Louisiana cases have consistently held the duty of a blood
bank is to: “screen[ ] donors and test[ ] blood in accordance with
the latest accepted guidelines in effect at th[e] time”, and
“follow[ ] the normal accepted procedures in administering the
blood”. Juneau v. Interstate Blood Bank, Inc. of Louisiana, 333
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So. 2d 354, 356 (La. Ct. App.), cert. denied, 337 So. 2d 220 (La.
1976). See also Chauvin v. Sisters of Mercy Health Sys., St.
Louis, Inc., 818 So. 2d 833, 846-47 (La. Ct. App.), cert. denied,
825 So. 2d 1194 (La. 2002); Martin v. Southern Baptist Hosp., 352
So. 2d 351, 353 (La. Ct. App. 1977), cert. denied, 354 So. 2d 210(La. 1978).
The Government established that it was not until 1986, 20
years after the transfusion at issue, that blood banks in the
United States began routinely testing donated blood to determine
whether it might be tainted with the hepatitis virus. The Lupos
failed to carry their burden of showing that, in 1966, hospitals
were either performing or were required to perform any particular
test for hepatitis on donated blood, either under the “accepted
guidelines in effect at that time” and/or “the normal accepted
procedures” followed by hospitals. Juneau, 333 So. 2d at 356. The
Lupos also failed to prove that, in 1966, hospitals were warning or
were required to warn their patients about the risk of contracting
hepatitis from infected blood. See Chauvin, 818 So. 2d at 845.
AFFIRMED
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