Sandra Hale v. USA ( 2019 )

Case: 19-20164 Document: 00515030382 Page: 1 Date Filed: 07/11/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-20164 FILED
Summary Calendar July 11, 2019
Lyle W. Cayce
Clerk
SANDRA G. HALE,
Plaintiff - Appellant
v.
UNITED STATES OF AMERICA; DEPARTMENT OF VETERANS
AFFAIRS; STEPHEN SEDER, Doctor; RAJANI POTU, Doctor; BAYLOR
UNIVERSITY SYSTEM; MICHAEL DEBAKEY MEDICAL CENTER (VA
HOSPITAL),
Defendants - Appellees
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-1189
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM:*
Sandra Hale, a disabled veteran, sued Dr. Stephen Seder, a dentist at
DeBakey VA Medical Center, and Dr. Rajani Potu, a physician there, from
injuries that resulted when her dentures were improperly disinfected. She also
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 19-20164
brought claims against the government for negligent hiring and improper
training. Because Seder and Potu are federal employees and she brought a
tort claim, she could not sue them individually. 28 U.S.C. § 2679(b)(1). But
she could sue the federal government for their alleged actions under the
Federal Tort Claims Act. Id. The district court later granted summary
judgment to the government, and we review that decision de novo. Coleman v.
United States, 912 F.3d 824, 828 (5th Cir. 2019).
The FTCA allows private citizens to sue the federal government when
federal employees commit torts for which a private person would be liable
under state law. Hannah v. United States, 523 F.3d 597, 601 (5th Cir. 2008).
Though Hale strains against this in her briefs, her complaint alleges a health
care liability claim. Even her claims for negligent hiring are considered health
care liability claims in Texas. See Garland Cmty. Hosp. v. Rose, 156 S.W.3d
541, 546 (Tex. 2004). When someone claims they are harmed by a medical
professional attempting to treat them but whose care falls below the accepted
standards of medical care, that claim is for health care liability. TEX. CIV.
PRAC. & REM. § 74.001(a)(13); see also Loaisiga v. Cerda, 379 S.W.3d 248, 256
(Tex. 2012) (describing the expansive application of Texas’s Medical Liability
Act).
In Texas, expert testimony is generally required to establish the
standard of care, to determine whether the medical professional breached it,
and to determine whether that breach caused the alleged injuries. Ellis v.
United States, 673 F.3d 367, 373 (5th Cir. 2012) (quoting Jelinek v. Casas, 328
S.W.3d 526, 538 (Tex. 2010)). Of course, not every case requires it: if a surgeon
operates on the wrong knee or leaves a sponge inside, no expert testimony is
required. Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990). But this
case required an expert. Though Dr. Seder was fined $600 by the Texas
Department of Agriculture for using the wrong chemical to disinfect her
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No. 19-20164
dentures, an expert was required at minimum to establish that the denture
cleaning caused any injuries.
Hale designated an expert toxicologist to testify. But by law the expert
must be a doctor or, for dental treatment, a dentist. TEX. CIV. PRAC. & REM.
CODE §§ 74.401(a), 74.403(a). Because her expert cannot demonstrate that any
breach of a duty of care caused her injuries, summary judgment was
appropriate.
AFFIRMED.
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