WASHINGTON, D.C. - (Mealey's) A citizen may proceed with his lawsuit against the United States alleging medical battery by a Navy doctor acting within his scope of employment, a unanimous U.S. Supreme Court ruled this morning (Steven Alan Levin v. United States, et al., No. 11-1351, U.S. Sup.).
"[T]he Gonzalez Act direction in 10 U.S.C. §1089(e) abrogates the FTCA's [Federal Tort Claims Act] intentional tort exception and therefore permits [Steven] Levin's suit against the United States alleging medical battery by a Navy doctor acting within the scope of his employment. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion," Justice Ruth Bader Ginsburg wrote for the court.
All justices joined in the entire opinion except Justice Antonin Scalia, who joined in the opinion except for footnotes six and seven, which address the Senate Report on the Gonzalez Act.
Levin claimed that he was injured as the result of a cataract surgery performed by a U.S. Navy doctor. Although Levin provided informed consent and signed consent forms after discussing the surgery with his doctor, he claimed that he orally withdrew his consent in the operating room shortly before the surgery began.
Levin initially filed an administrative claim. When his claim was not favorably resolved, he sued the United States for negligence and battery in the U.S. District Court for the District of Guam. He also named as a defendant the Navy doctor in his individual capacity. The government certified that the doctor was acting in the scope of his employment and moved to substitute the United States as defendant, as authorized by both the Gonzalez Act and the Federal Employees Liability Reform and Tort Compensation Act. The District Court granted the unopposed motion.
The District Court then granted the government's motion for summary judgment as to Levin's negligence claim, in light of the absences of any expert evidence that the medical treatment failed to satisfy the relevant standard of care. Levin did not appeal that ruling. The only remaining claim was Levin's battery claim against the United States under the FTCA.
Addressing that claim, Levin argued that even if the doctor's conduct was not negligent, the operation was battery because Levin had orally withdrawn his consent to surgery. The District Court denied the government summary judgment on the battery claim on the ground that a genuine issue of material fact existed. However, it ultimately held that the claim was barred by 28 U.S. Code Section 2680(h) and thus dismissed it for lack of subject matter jurisdiction.
Levin appealed the dismissal of his battery claim. The Ninth Circuit U.S. Court of Appeals affirmed. The appellate panel rejected Levin's claim that 10 U.S. Code Section 1089(e) negates the FTCA's preservation of sovereign immunity against battery claims in 26 U.S. Code Section 2680(n). The panel also concluded that Levin could not overcome the principle that waivers of sovereign immunity cannot be implied but "must be unequivocally expressed."
Levin then petitioned the U.S. Supreme Court.
Presenting oral arguments, Levin's attorney, James A. Feldman of Washington, told the high court that "for cases covered by the Gonzalez Act; that is, cases of medical malpractice committed within the scope of employment by the doctors of the certain specified agencies that Congress has named for those cases, there is no intentional tort exception, and therefore, you can bring an action against the government."
But Assistant to the Solicitor General Pratik A. Shah countered in his oral arguments that Congress enacted the Gonzales Act "[b]ecause it was primarily concerned about conferring personal immunity. Every time the Senate Report talks about the purpose of the bill - it's on page 1, heading: Purpose of the Bill - it says conferring personal immunity. Nothing about expanding the Government's tort liability."
In addition to Shah, Solicitor General Donald B. Verrilli Jr. in Washington represents the United States.
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