Bustamente v. US Dept Vet Affairs

* 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this opinion should not be published and is not precedent except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. 03-31160
Conference Calendar
HERMAN BUSTAMENTE,
Plaintiff-Appellant,
versus
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 02-CV-3717
--------------------
Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Herman Bustamente filed suit against the United States for
damages pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 2671-80, alleging that he received negligent medical treatment
at the New Orleans Veterans Administration Medical Center. He
alleges that he contracted herpes from receiving blood infected
with the virus during heart surgery at the hospital in 1996.
Bustamente contends that the hospital was negligent based upon
United States Court of Appeals
Fifth Circuit
F I L E D
August 17, 2004
Charles R. Fulbruge III
Clerk

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the doctrine of res ipsa loquitur. Bustamente appeals the
district court’s grant of summary judgment to the Government.
We review a grant of summary judgment de novo, using the
same standard applicable in the district court. 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 alleged medical malpractice in this case occurred in
Louisiana, Louisiana law controls. See Tindall, 901 F.2d at 55.
The only evidence offered by Bustamente as proof of the
hospital’s negligence are medical records from his treating
physicians, and those records do not support his allegation that
he contracted herpes from a blood transfusion. Consequently,
Bustamente has failed to carry his burden of proving the
hospital’s negligence. See Boutte v. Jefferson Parish Hospital
Service District No. 1, 807 So. 2d 895, 898 (La. App. 5 Cir.),
writ denied, 813 So. 2d 1093 (La. 2002).
Bustamente’s argument regarding res ipsa loquitur need not
be considered because it is raised for the first time in his
reply brief. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.
1994). Even if the res ipsa loquitur theory were addressed,
however, it would be found unconvincing. Bustamente’s own
evidence shows that the blood transfusion was not the probable

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cause of his infection and that there were other equally
plausible explanations for his condition. See Cangelosi v. Our
Lady of the Lake Regional Medical Center, 564 So.2d 654, 660 (La.
1990).
Accordingly, the judgment of the district court is hereby
AFFIRMED.

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