Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Articles Posted in Medical Malpractice

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Brian Fitzgerald appealed for a second time the district court's award to him of $33,333 in quantum meruit - for his services in a medical malpractice case appellee had settled on behalf of Wende Nostro, a client Fitzgerald had referred to appellee - based on the unjust enrichment he conferred on appellee. The court held that the initial measure of Fitzgerald's quantum meruit award was one-third of appellee's $500,000 recovery from the Nostro settlement, or $166,666. The court further held that the $166,666 amount should be reduced to the extent Fitzgerald decreased the overall value to appellee of the Nostro case. Accordingly, the court vacated the district court's order and remanded with instructions that the district court enter a final quantum meruit award of $100,000 for Fitzgerald.

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After his unsuccessful cataract surgery, plaintiff brought a claim for battery against the United States government and his United States Navy surgeon. The United States invoked the Gonzalez Act, 10 U.S.C. 1089, immunizing individual military medical personnel from malpractice liability. At issue was whether section 1089(e) waived the government's sovereign immunity for common law battery claims. The court held that it did not and affirmed the district court's dismissal of plaintiff's complaint for lack of subject-matter jurisdiction. The court did not address plaintiff's remaining claims.