The Supreme Court ruled unanimously that the federal government does not have sovereign immunity from a veteran’s lawsuit against a U.S. Navy doctor for medical battery because a provision in the Gonzalez Act explicitly states that the Federal Tort Claims Act’s (FTCA) intentional tort exception does not apply. This decision resolves a circuit split on whether medical battery claims are allowed under the FTCA and, according to plaintiff attorneys, is a victory for veterans and military families. (Levin v. U.S., No. 11-1351 (U.S. Mar. 4, 2013).)
The FTCA generally allows people to bring tort actions against the government but affords it sovereign immunity protection for certain intentional torts, including battery. As originally enacted, however, the statute did not preclude claims against the alleged tortfeasor, which prompted Congress to enact several federal agency-specific statutes, such as the Gonzalez Act. This act provides that claims against the United States under the FTCA are the “exclusive” remedy for injuries resulting from medical malpractice committed by military personnel.
While the Gonzalez Act shields armed forces medical employees from being sued for torts committed in the course of their employment in most cases, §1089(e) provides that the FTCA’s intentional tort exception “shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions,” and the Supreme Court ruled that this exception allows the plaintiff’s case to proceed.
In late 2002, Navy doctor Frank Bishop determined that Steven Levin, an armed forces veteran living in Guam, needed surgery for a cataract in his right eye. Levin agreed in writing on two different occasions, but he withdrew his consent orally on the day of the surgery based on equipment concerns. Bishop proceeded with the surgery anyway. Due to complications, Levin developed a corneal edema that resulted in a corneal transplant, diminished eyesight, discomfort, and other side effects.
In 2005, Levin sued the U.S. government and Bishop in federal district court in Guam alleging medical battery and medical malpractice. The United States moved to substitute itself in Bishop’s place, arguing that the doctor was acting in his scope of employment, and the trial court consented to the substitution.
The government moved for summary judgment, but the court dismissed only Levin’s medical malpractice claim. The United States subsequently moved to dismiss the battery claim, alleging lack of subject matter jurisdiction. The court granted the defendant’s motion in 2009, holding that the government was immune from Levin’s battery claims because §1089 of the Gonzalez Act was “solely intended to protect armed forces medical workers from personal liability—not to enable tort plaintiffs to bring claims they could not otherwise bring under the FTCA.”
During the pendency of the trial court proceedings, Levin became pro se and appealed the decision on the battery claim to the Ninth Circuit. Levin argued that §1089(e) precluded the FTCA intentional tort exception. The Ninth Circuit affirmed, and Levin appealed.
Justice Ruth Bader Ginsburg, writing for the Court, held that §1089(e) explicitly provides that the FTCA tort exception shall not apply. The Court held that to construe the statute any other way is unnatural and not what Congress intended.
Austin, Texas, attorney Laurie Higginbotham said the decision is not only a victory for military families, veterans, and pro se litigants, but it also resolves a circuit split on the issue. “The Tenth Circuit allowed medical battery claims, but other circuits, such as the Ninth Circuit, blocked those claims under the FTCA’s exception for battery generally,” said Higginbotham, who represents plaintiffs in federal tort claims. “Now there is no question that all victims of medical battery can bring their claims against the United States.”
Howard Richman of Stony Point, N.Y., who also represents plaintiffs in these types of cases, said he was pleasantly surprised by the Court’s ruling.
“I don’t know anyone who would have expected the decision to come down the way it did. Usually, the Court applies a restrictive reading of the FTCA,” said Richman.
The decision could affect other federal tort claims, said Higginbotham. “The Gonzalez Act applies to medical personnel in the armed forces, but there is similar statutory language that applies to medical personnel in the State Department, Veterans Administration, and Public Health Service, so this decision will likely provide an avenue for medical battery claims against the United States by those practitioners as well.”