Case: 12-60901   Document: 00512449465     Page: 1   Date Filed: 11/21/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                   FILED
                                                             November 21, 2013

                                 No. 12-60901                   Lyle W. Cayce
                                                                     Clerk

IN THE MATTER OF THE ESTATE OF IRA J. SANDERS, Deceased, Ruther
Sanders, Administrator,

                                           Plaintiff – Appellant
v.

UNITED STATES OF AMERICA,

                                           Defendant – Appellee



                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge.
      Ira J. Sanders (“Sanders”), who received medical treatment from the
Department of Veterans Affairs, died of stomach cancer in 2008. Sanders’s
estate (“the Estate”) filed a malpractice suit against his health care providers
under the Federal Tort Claims Act (“FTCA”), alleging in part that they failed to
provide appropriate follow-up care after discovering a mass in Sanders’s stomach
in 2003. The district court granted summary judgment for the United States
based on its finding that the Estate’s expert report failed to establish the
relevant standard of care or create a question of fact as to the remaining
elements of a malpractice claim under Mississippi law. Despite the tragic facts
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of this case, we agree that the expert’s report was legally inadequate, and we
AFFIRM.
                  FACTS AND PROCEDURAL HISTORY
      Sanders experienced symptoms of reflux in 2003 and sought attention
from his primary care doctors at the Meridian Community Based Outpatient
Clinic (“Meridian Clinic”). Doctors at the Meridian Clinic referred Sanders to
the Jackson VA Medical Center (“JVAMC”) for an esophagogastroduodenoscopy
(alternately referred to in the record as an “endoscopy” or “EGD”), a procedure
that visualizes the upper part of the gastrointestinal tract. Dr. Maher Azzouz,
a board-certified gastroenterologist, performed the EGD on December 10, 2003.
According to JVAMC medical records, Dr. Azzouz discovered a “mass” in
Sanders’s stomach, which the medical records describe as: “fragments of
adenomatous dysplatic mucosa, consistent with papillary adenoma.”            The
medical records also note findings of “[c]omplete intestinal metaplasia.”
      The medical records for December 12, 2003, indicate that due to the
“stomach polyp,” Dr. Azzouz was “to do Endoscreen” on February 12, 2004, and
that Sanders would be “notified by letter.” On January 26, 2004, Dr. Azzouz
rescheduled the follow-up test for March 12, 2004. Under “indications for
procedure,” the records again note: “stomach[] polyp.” Sanders was notified of
the date of the procedure, but the Estate alleges that he was not notified of the
reason it was needed.
      Two of Sanders’s children, Belinda and James, accompanied Sanders to
the JVAMC on March 12, 2004. According to Belinda and James Sanders’s
affidavits, upon arrival, they were “told by staff members . . . that there was no
EGD scheduled for [Sanders] that day and that since he had an EGD performed
with[in] the past year that there was no necessity to repeat the test.”
      In the summer of 2008, Sanders was again evaluated at the Meridian
Clinic after experiencing weight loss and difficulty eating. He was admitted to

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JVAMC on July 8, 2008; an EGD performed by Dr. Stephen Tuuri the next day
revealed a cancerous stomach mass. Sanders underwent surgery on July 25,
2008.       He died on July 29, 2008. The Estate does not allege malpractice in
connection with Sanders’s care in 2008.
        Ruther Sanders, Sanders’s widow and the administrator of the Estate,
filed an FTCA claim in June 2010.1 The complaint alleged malpractice on the
part of the United States “acting through its agents, servants and or employees
at the [JVAMC] in Jackson, Mississippi and also at the [Meridian Clinic].”2 The
Estate asserted that employees both of the JVAMC and the Meridian Clinic
“owed a duty to [Sanders] to relay to him the results of the endoscopy performed
by Dr. Azzouz on 12-10-2003 . . . and further to provide appropriate follow-up
care for the pre-cancerous stomach lesion which if performed pursuant to the
standard of care, the cancer would have been detected at an earlier date and
would have been amenable to surgical cure.” The complaint continued: “As a
direct and proximate result of the failure to provide the appropriate standard of
care . . . Sanders’[s] disease remained untreated and he subsequently died.”
        The district court, on the agreement of both parties, granted the
government’s motion to dismiss the Meridian Clinic defendants, on the grounds
that they were not government employees under the FTCA. The order noted
that the Estate’s “claims regarding Dr. Azzouz, an employee of the government,
are not the subject of the motion to dismiss,” but did not mention potential
claims against other JVAMC employees.




        1
        On February 2, 2009, a Standard Form 95 “Claim for Damage, Injury, or Death” was
submitted to the Department of Veterans Affairs; it was denied on December 31, 2009.
        2
        According to the government’s brief, plaintiff also filed a second lawsuit against Staff
Care, Inc., the company employing physicians at the Meridian Clinic. That lawsuit was
dismissed with prejudice pursuant to a stipulation.

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       Both parties submitted expert reports. The Estate’s report was authored
by Dr. Robert Sklaroff, an attending physician at Nazareth Hospital,
Philadelphia, who is board-certified in internal medicine and medical oncology.3
Dr. Skarloff’s report concluded that, had Sanders
       been provided episodic follow-up gastroscopic evaluations, the lesion
       would have been detected at an earlier moment in its natural
       history . . . [ellipsis in report] when it would have been amenable to
       surgical cure. It was beneath the standard-of-care for such
       monitoring not to have been offered to the patient during the half-
       decade between the detection of the pathologic abnormalities and
       the establishment of the diagnosis of inoperable disease.
       The government submitted a report authored by Dr. Thomas L. Abell, chief
of gastroenterology at the University of Mississippi Medical Center. Dr. Abell
concluded:
       The procedure and recommendations by Dr. Maher Azzouz, the
       Gastroenterologist performing the procedure, were appropriate and
       meet the standard of care for this case. Further monitoring of this
       patient and follow up care were the responsibility of the patient’s
       primary care physician and not the responsibility of Dr. Azzouz, who
       met the standard of care in all aspects in this case.
       The government moved for summary judgment, arguing that Dr. Skarloff’s
report failed to establish the necessary elements of a medical malpractice claim
against Dr. Azzouz. In its response, the Estate emphasized that its “lone
remaining claim is against employees of the [JVAMC], including but NOT solely
limited to, Dr. Maher Azzouz.” The Estate maintained: “It is Dr. Sklaroff’s
opinion . . . that the standard of care was breached by employees of the [JVAMC]
including Dr. Azzouz, by failing to set up the EGD procedure on 3-12-2004 as
ordered by Dr. Azzouz.”




       3
       If depositions of either expert were conducted, they neither appear in the record nor
were adverted to by the parties.

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      The district court granted summary judgment for the government, finding
that Dr. Sklaroff’s report was inadequate. It agreed with the government that
five deficiencies marred Dr. Sklaroff’s report: failure to mention a government
employee by name as having breached the standard of care; failure to articulate
the applicable standard of care; failure to state Dr. Sklaroff’s familiarity with the
applicable standard of care; failure to indicate that a JVAMC employee rather
than one of Sanders’ primary care providers had the duty to provide follow-up
care; and failure to show causation.
      Additionally, the district court found no support in the expert report nor
the medical records for the Estate’s theory that the mass detected in 2003 was
the same mass found to be cancerous in 2008, and that JVAMC employees other
than Dr. Azzouz were negligent in not ensuring the second EGD took place. The
district court interpreted Dr. Sklaroff’s comment that had someone placed
Sanders on a monitoring program, “the lesion would have been detected at an
earlier moment” to imply that the 2003 and 2008 masses were unrelated. The
district court found that the medical records neither described the 2003 mass as
pre-cancerous nor linked it to the 2008 mass. Even assuming a link between the
2003 and 2008 masses, the district court found that “nothing suggests that
Sanders’s cancer would have been discernable by March 2004,” when the follow-
up EGD was scheduled to have been performed.
                           STANDARD OF REVIEW
      This court reviews the district court’s decision to grant summary judgment
de novo, applying the same standard as the district court. Moss v. BMC
Software, Inc., 

, 922 (5th Cir. 2010). It may award summary
judgment if, viewing all evidence in the light most favorable to the non-movant,
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 United Fire
& Cas. Co. v. Hixson Bros., Inc., 

, 285 (5th Cir. 2006); Fed. R. Civ.

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P. 56(a). A dispute gives rise to a genuine issue of material fact when the
evidence permits a reasonable jury to return “a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 

, 248 (1986). “Summary judgment
must be affirmed if it is sustainable on any legal ground in the record, and it
may be affirmed on grounds rejected or not stated by the district court.” S&W
Enterprises, L.L.C. v. SouthTrust Bank of Alabama, NA, 

, 537–38
(5th Cir. 2003) (citations omitted).
                                 DISCUSSION
      The FTCA allows suits against the United States for personal injury or
death caused by a government employee’s negligence “under circumstances in
which a private person would be liable under the law of the state in which the
negligent act or omission occurred.” Hannah v. United States, 

, 601
(5th Cir. 2008); see also 28 U.S.C. §§ 1346(b)(1), 2674. Liability in FTCA medical
malpractice cases is controlled by state law. 

; 28
U.S.C. § 1346(b)(1). Thus, we look to Mississippi law to determine the elements
of the malpractice claim.
      Under Mississippi law, a prima facie case of medical malpractice requires
proof of the following elements: “(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, 

, 956-57 (Miss. 2007). The
plaintiff bears the burden of establishing these elements at the summary
judgment stage through supporting evidence. Celotex Corp. v. Catrett, 

, 322-23 (1986).
      Expert testimony must be used to establish these elements in a medical
malpractice claim. 

(citing Barner v. Gorman, 

, 809 (Miss. 1992)). “Not only must this expert identify and articulate

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the requisite standard that was not complied with, the expert must also
establish that the failure was the proximate cause, or proximate contributing
cause, of the alleged injuries.” 

605 So.2d at 809); see also
McDonald v. Mem’l Hosp. at Gulfport, 

, 180 (Miss. 2009); Cheeks v.
Bio-Med. Applications, Inc., 

, 120 (Miss. 2005).4 If the plaintiff
fails to present sufficient evidence as to these elements, there is no genuine issue
of material fact, and therefore summary judgment is appropriate. Celotex 

. “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, 

, 384 (Miss. 2009).
       The relevant section of Dr. Sklaroff’s report reads as follows:
       This 80-year-old male . . . presented on 12/10/2003 for endoscopy due
       to symptoms of Gastro-Esophageal Reflux Disease [“GERD”]. The
       Procedure Report is not complete, but the Pathology Report revealed
       that a “Stomach Mass” demonstrated gastritis, and dysplasia. No
       follow-up was provided to assess these findings.

       The Problem List was otherwise not contributory . . . .

       On 7/25/2008, [Sanders] underwent a gastrectomy for locally
       advanced gastric cancer (with posterior fixation and hepatic
       involvement), at which time he had a feeding jejunostomy. By
       information and belief, it is noted that he died on 7/29/2008.

       Therefore, had [Sanders] been provided episodic follow-up
       gastroscopic evaluations, the lesion would have been detected at an
       earlier moment in its natural history . . . [ellipsis in report] when it
       would have been amenable to surgical cure. It was beneath the
       standard-of-care for such monitoring not to have been offered to the
       patient during the half-decade between the detection of the



       4
        The exception to this rule is for “situations of obvious negligence,” which “a layman
can understand without expert testimony” as “a matter of common sense and practical
experience.” 

–61 (internal quotation marks and citations omitted).
The Estate does not argue that the layman’s exception applies in this case.

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      pathologic abnormalities and the establishment of the diagnosis of
      inoperable disease.
      The district court found, inter alia, that Dr. Sklaroff’s report was deficient,
failing to establish a question of fact as to causation. Under Mississippi law,
“[i]n a medical malpractice case, as in all claims for negligence, causation must
be proven in order to establish a prima facie case.” 

.
“Mississippi law does not permit recovery of damages because of mere
diminishment of the chance of recovery. Recovery is allowed only when the
failure of the physician to render the required level of care results in the loss of
a reasonable probability of substantial improvement of the plaintiff’s condition.”

words, the plaintiff must present evidence that proper treatment
would lead to “a greater than fifty (50) percent chance of a better result than was
in fact obtained.” 

v. 

(Miss.
1987)) (internal quotation marks omitted). Thus, a “mere better result absent
malpractice” would not meet the causation requirement. 

,
515 So.2d at 889).
      Further, the “expert opinion of a doctor as to causation must be expressed
in terms of medical probabilities as opposed to possibilities.”           Univ. Of
Mississippi Med. Ctr. v. Lanier, 

, 1202 (Miss. 2012), reh’g denied
(Oct. 4, 2012). “[T]he intent of the law is that if a physician cannot form an
opinion with sufficient certainty so as to make a medical judgment, neither can
a jury use that information to reach a decision.” 

v. State,

, 597 (Miss. 1996)). This does not, however, mean that experts
must use “magic words” like the phrase “within a reasonable degree of medical
certainty.” Vanlandingham v. Patton, 

, 1249 (Miss. Ct. App. 2010).
If the “import of [the expert’s] testimony [is] apparent,” 

enough:
      The Mississippi Supreme Court has recognized “that the plaintiff is
      rarely able to prove to an absolute certainty what would have
      happened if early treatment, referral or surgery had happened.”

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      Clayton v. Thompson, 

, 445 (Miss.1985). Thus,
      causation may be established through circumstantial evidence so
      long as the circumstances shown “take the case out of the realm of
      conjecture and place it within the field of legitimate inference.”
      Estate of Gibson ex rel. Gibson v. Magnolia Healthcare, Inc., 

, 625 (Miss. 2012).

Ladner ex rel. Ladner v. Forrest Gen. Hosp., 2:12CV19-KS-MTP, 2013 WL No.
3776695, at*5 (S.D. Miss. July 18, 2013).
      Mississippi courts have recognized that in cases such as this one, where
the injury resulted from an underlying disease and the alleged malpractice took
the form of a failure to cure, rather than the results of “any positive effects of
mistreatment,” establishing causation is “particularly difficult.” 

. Nonetheless, the plaintiff must still establish “with evidence that
it was probable, or more likely than not, that the patient would have been helped
by proper treatment.” 

v. Wansley, the Mississippi Supreme Court considered a case
in which a patient fell unconscious at a hospital and struck her head during the

. Her doctor, Dr. Wansley, was contacted by telephone and
advised the nurse to monitor the patient’s blood pressure and consciousness for
two hours and to send her home if there was no change. 

The
patient was sent home, but she was later diagnosed with a hemorrhage. 

The court affirmed the trial court’s summary judgment in favor of Dr.
Wansley, in part because the plaintiff’s expert, Dr. Stringer, failed to establish
causation. 

      Dr. Stringer authored two affidavits. 

In the first, he stated: “In
my opinion, [the patient] was deprived the opportunity of full recovery after her
fall because of lack of treatment.” 

testimony, Dr. Stringer
admitted that even had the patient received “optimum medical care,” she could
still have ended up in the same poor condition. 

In his second


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affidavit, Dr. Stringer asserted that the patient would have had a greater than
fifty percent chance of reduced injury with “proper[]” treatment, but that
assertion was “given with no real facts to back it up”; instead, it was “almost
wholly conclusory on the issue of causation and [gave] very little in the way of
specific facts and medical analysis to substantiate the claim.” 

see
also Perez v. Univ. of Mississippi Med. Ctr., 

, 612 (Miss. 2011)
(expert’s affidavit was “conclusory” where he “failed to explain how or why using
Floxin Otic instead of Ocuflux could have caused Perez’s eye injury.”).
      In this case, Dr. Sklaroff’s report concluded: “[H]ad [Sanders] been
provided episodic follow-up gastroscopic evaluations, the lesion would have been
detected at an earlier moment in its natural history . . . when it would have been
amenable to surgical cure.” The district court noted that it is unclear whether
by stating that “the lesion would have been detected” (emphasis added), Dr.
Sklaroff was suggesting that the 2003 mass did not itself become cancerous. But
even assuming, as the Estate urges, that the mass detected in 2003 later became
cancerous, Dr. Sklaroff’s assertion that the lesion “would have been amenable
to surgical cure” does not establish the probability of a better outcome nor take
that probability out of the realm of conjecture. See Estate of 

(holding that “testimony, taken as a whole, must establish ‘reasonable
medical certainty’ that the negligence caused the injuries at issue”) (citation
omitted); 

; 

n.3 (“[W]e take
this opportunity to state with clarity that expert medical testimony as to
causation must be set forth in terms of medical probability.”).
      Dr. Sklaroff’s report is distinguishable from testimony in another failure-
to-diagnose case, Ladner v. Campbell, which the Mississippi Supreme Court
found did create a triable issue of 

. In Ladner, the
defendant physician failed to diagnose a lump in the patient’s breast as
cancerous. 

The plaintiff introduced an expert report stating that

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“within a reasonable medical probability, a mammography on that day [that the
defendant first examined the lump] would have detected the lesion; and that the
failure to diagnose probably caused her long term survival to be significantly
decreased.” 

Although the report acknowledged that “prognostication
about a cancer patient’s chances is difficult,” it went through specific factors that
would give the patient a “five year survival chance of 62 percent on [the day the
lesion should have been discovered], as opposed to 32 percent at the time of her
surgery.” 

(noting, inter alia, the small size of the tumor and the
number of lymph nodes affected). By contrast, Dr. Sklaroff’s affidavit included
no specific analysis of the results of Sanders’s EGD, nor the point at which
surgical intervention would have yielded a better outcome.            We therefore
conclude that the Estate failed to establish a triable issue of fact on the question
of causation.
      In addition, we conclude that Dr. Sklaroff failed to establish with any
specificity the standard of care applicable to Dr. Azzouz, or the particulars of Dr.
Azzouz’s, or any other hospital employee’s, alleged breach of duty. Expert
testimony under Mississippi law must “(a) articulate[] the duty of care the
physician owes to a particular patient under the circumstances, and (b) identify[]
the particular(s) wherein the physician breached that duty and caused injury to
the plaintiff patient.” Phillips ex rel. Phillips v. Hull, 

, 491 (Miss.
1987) (en banc) (overruled on other grounds by Whittington v. Mason, 

(Miss. 2005)).     Dr. Sklaroff asserted that Sanders should have been
“provided episodic follow-up gastropic evaluations,” and that “[i]t was beneath
the standard-of-care for such monitoring not to have been offered to the patient
during the half-decade” following the first EGD. Dr. Sklaroff did not clarify how
often “episodic” evaluations should have taken place.          See Hans v. Mem’l
Hospital at Gulfport, 

, 1280 (Miss. Ct. App. 2010) (holding that an
expert’s report failed to establish the standard of care when it did not clarify

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“[h]ow soon is ‘soon,’” “[w]hat would be considered ‘an appropriate disposition,’”
and “how any other procedure would have reduced delay”). In addition, although
Dr. Sklaroff asserts that “no follow-up was offered” (emphasis added), he did not
mention that Sanders was scheduled for a repeat EGD. This omission is
significant because Dr. Sklaroff does not identify a particular alleged breach of
duty—for example, not notifying Sanders of the EGD results; turning him away
at   his   follow-up     appointment;        or    not   scheduling      future    follow-up
appointments—nor does he specify the individual hospital staff member at fault
for the alleged breach. See 

; Powell v. Methodist Health
Care Jackson Hosps., 

, 356 (Miss. Ct. App. 2003); cf. Estate of
Guillotte ex rel. Jordan v. Delta Health Grp., Inc., 

, 408–09 (Miss.
2009) (reversing a grant of summary judgment to defendants where, although
the plaintiff’s experts did not identify individual defendants by name, there was
“a significant amount of expert testimony . . . regarding individual staff
members’ negligence,” and “the depositions as a whole clearly indicate that
individual staff members breached the standard of care”).5
                                     CONCLUSION
       Because Dr. Sklaroff’s report does not establish causation as a medical
probability or point to a breach of the standard of care with the requisite
specificity, we AFFIRM the district court’s grant of summary judgment to the
government.




       5
        Because we find that Dr. Sklaroff’s report did not create a fact issue as to causation,
nor as to standard of care and breach of duty, we do not reach the question of whether Dr.
Sklaroff was qualified to give an expert opinion as to the standard of care applicable to a
gastroenterologist such as Dr. Azzouz.

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