Summary Calendar LESLEY MARION v. Ochsner Clinic of Baton Rouge

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30257
Summary Calendar
LESLEY MARION
Plaintiff - Appellant
v.
OCHSNER CLINIC OF BATON ROUGE ET AL
Defendants
OCHNSER CLINIC OF BATON ROUGE;
JOHN A. DEAN, M.D.; FEDERAL BUREAU
OF PRISONS,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 95-CV-692
November 21, 2001
Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
Lesley Marion appeals from the district court’s order
granting summary judgment in favor of the defendants in his
medical malpractice action brought pursuant to the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671, et seq. Under the
FTCA, liability for medical malpractice is controlled by the law

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No. 01-30257
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of the state in which the alleged malpractice occurred –
Louisiana in this case. See Ayers v. United States, 750 F.2d
449, 452 n.1 (5th Cir. 1985). In order to recover damages in a
medical malpractice case under Louisiana law, among other
elements, the plaintiff must use medical expert evidence to
establish the standard of care applicable to the defendant
health-care providers. La. Rev. Stat. Ann. 40:1299.39 (West
2001); see Bailey v. State, 695 So. 2d 557, 559 (La.Ct.App.
1997).
Marion does not contest the fact that he failed to provide
the district court with medical expert evidence on the issue of
the applicable standard of care. Rather, he argues that such
evidence was not required in his case because the negligence he
suffered is of such a nature as to be obvious to a layperson. We
disagree. The complex medical and factual issues involved in
establishing how thoroughly the defendants were required to
search Marion’s person for the missing, implanted Penrose drain
is beyond the province of lay persons to assess. Thus, Marion
was required under Louisiana law to provide medical expert
evidence to establish the standard. See Pfiffner v. Correa, 643
So. 2d 1228, 1234 (La. 1994).
We have reviewed the record, the briefs of the parties, and
the applicable law, and we discern no reversible error. See
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Fed. R. Civ.
P. 56(e). The district court judgment is AFFIRMED.

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