Herbert S. Adair v. United States

39 F.3d 1186 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Herbert S. ADAIR, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 93-55520. United States Court of Appeals, Ninth Circuit. Submitted Oct. 7, 1994. * Decided Nov. 1, 1994. 1 Before: FLETCHER, BOOCHEVER, and FERNANDEZ, Circuit Judges 2 MEMORANDUM ** 3 Plaintiff Herbert Adair appeals from the judgment for defendant after a bench trial on his medical malpractice claim brought under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. We affirm. I. 4 Adair sought to turn what started out as a claim of negligent performance of surgery into a claim that the doctor had not secured his informed consent to perform the surgery. This latter claim is not reflected in the pleadings or the pre-trial order. On appeal, Adair contends that the district court erred by finding that he had not met his burden of proof on the informed consent claim. Adair also contends that the district court erred by…