March 5, 2013

162017_132140396847214_292624_nIn a case decided by the U.S. Supreme Court (“Supreme Court”) on March 4, 2013, the Supreme Court determined the issue whether the controlling provision of the Gonzalez Act, §1089(e), authorizes battery claims against the United States when military doctors operate without the patient’s consent. Because of the importance of the Supreme Court’s decision that found in favor of the medical malpractice plaintiff, we quote extensively from the opinion below.

The Underlying Facts

The petitioner, Steven Alan Levin, a veteran, was diagnosed with a cataract in his right eye. He sought treatment at the United States Naval Hospital in Guam and was evaluated by Lieutenant Commander Frank Bishop, M. D., an ophthalmologist serving in the U. S. Navy. Dr. Bishop recommended that Levin undergo “phacoemulsification with intraocular lens placement,” a surgical procedure involving extraction of the cataract and insertion of an artificial replacement lens. Levin signed forms consenting to the operation, which took place on March 12,2003. Shortly before the surgery began, Levin alleges, he orally withdrew his consent twice, but Dr. Bishop conducted the operation nevertheless. Due to complications occurring while the surgery was underway, Levin developed corneal edema, a condition that left him with diminished eyesight, discomfort, problems with glare and depth-of- field vision, and in need of ongoing medical treatment.

The Petitioner’s Medical Malpractice And Other Claims

Levin sought compensation for the untoward results of the surgery. After exhausting administrative remedies, he commenced a civil action in the U. S. District Court for the District of Guam. Naming the United States and Dr. Bishop as defendants, Levin asserted claims of battery, based on his alleged withdrawal of consent to the surgery, and negligence, based on alleged flaws in Dr. Bishop’s performance of the operation. Accepting the Government’s representation that Dr. Bishop was acting within the scope of his employment while performing the surgery, the District Court granted the Government’s motion to release Dr. Bishop and substitute the United States as sole defendant. When Levin failed to produce expert testimony in support of his negligence allegations, the court granted the Government’s motion for summary judgment on that claim.

Next, the Government moved to dismiss the battery claim. The District Court no longer had jurisdiction over Levin’s case, the Government argued, because the [the Federal Tort Claims Act’s]  intentional tort exception, §2680(h), disallows suits against the United States for battery. Levin countered that the Gonzalez Act, in particular, §1089(e), renders the intentional tort exception inapplicable when a plaintiff alleges medical battery by an armed forces physician. The District Court rejected Levin’s plea and granted the Government’s motion to dismiss for lack of subject-matter jurisdiction.

On appeal to the Ninth Circuit, Levin did not question the adverse judgment on his negligent performance claim, but he renewed the argument that the battery claim, based on his alleged withdrawal of consent, survived. That was so, he maintained, because §1089(e) negated §2680(h), the FTCA’s intentional tort exception. The Court of Appeals thought Levin’s construction of the Gonzalez Act “plausible,” but “not the best reading of the statute.” As perceived by the Ninth Circuit, §1089(e) had a limited office, serving only to buttress the immunity from personal liability granted military medical personnel in §1089(a). “[C]lever tort plaintiffs,” the court conjectured, might argue in future cases that because the FTCA does not authorize battery claims against the United States, such claims may be asserted against military doctors notwithstanding §1089(a). Ibid. Section 1089(e) foreclosed that argument, but the provision did nothing more, the court concluded. Satisfied that §1089(e) served the dominant purpose of the Gonzalez Act—to immunize covered medical personnel against malpractice liability—and did not unequivocally waive the United States’ sovereign immunity from battery claims, the Ninth Circuit affirmed the District Court’s disposition.

The Supreme Court’s Decision 

The Federal Tort Claims Act (FTCA) waives the Government’s sover­eign immunity from tort suits, 28 U. S. C. §1346(b)(1), but excepts from the waiver certain intentional torts, including battery, §2680(h). The FTCA, as originally enacted, afforded tort victims a remedy against the United States, but did not preclude suit against the al­leged tortfeasor as sole or joint defendant. Several agency-specific statutes postdating the FTCA, however, immunized certain federal employees from personal liability for torts committed in the course of their official duties.

One such statute, the Gonzalez Act, makes the remedy against the United States under the FTCA preclusive of any suit against armed forces medical personnel. 10 U. S. C. §1089(a). The Act also provides that, “[f]or purposes of this section,” the inten­tional tort exception to the FTCA “shall not apply to any cause of ac­tion arising out of a negligent or wrongful act or omission in the per­formance of medical . . . functions.” §1089(e).

Congress subsequently enacted comprehensive legislation, the Federal Employees Liability Reform and Tort Compensation Act (Liability Reform Act), which makes the FTCA’s remedy against the United States exclusive for torts committed by federal employees acting within the scope of their employment, 28 U. S. C. §2679(b)(1). Under the Liability Reform Act, federal employees are shielded without regard to agency affiliation or line of work …

… medical malpractice claims may be based on negligence, in which case the FTCA’s waiver of the Government’s sovereign immunity is not in doubt. Or they may be based on alleged lack of consent, therefore qualifying as batteries. Whether the Government’s immunity is waived for such claims depends on the meaning of 10 U. S. C. §1089(e) …

The provision of the Gonzalez Act at issue, §1089(e), has two components: an introductory clause and an operative clause. The introductory clause prefaces §1089(e) with”[f]or purposes of this section.” …

Levin reads §1089(e) to negate §2680(h) for battery claims involving medical personnel of the armed forces and other specified agencies. He trains first on the operative clause of §1089(e), which contains this directive: The intentional tort exception to the FTCA “shall not apply” to claims alleging medical malpractice. But, he points out, if left unqualified, the operative clause would expose the United States to liability for medical malpractice committed by federal employees across all agencies. The introductory clause, Levin maintains, supplies the qualification: It confines the operative clause to claims covered by “this section,” i.e., claims alleging malpractice by personnel in the armed forces and the other agencies specified in the Gonzalez Act. Because Levin’s claim concerning Dr. Bishop’s alleged battery fits that category, Levin concludes, he may sue to recover from the United States.

The Government, in contrast, reads §1089(e)’s introductory clause as instructing courts to pretend, “[f]or purposes of ” the Gonzalez Act, that §2680(h) does not secure the Government against liability for intentional torts, including battery, even though §2680(h) does provide that shelter. Congress included this counterfactual instruction in the Gonzalez Act, the Government successfully argued in the Ninth Circuit, “to guard against the negative inference that, if no remedy against the United States were available for a medical battery claim, a remedy against an individual defendant must exist.” … Warding off this mistaken inference, the Government asserts, §1089(e) eliminates any doubt that the military medical personnel covered by §1089(a) are personally immune from malpractice liability. Ensuring that immunity, the Government reminds us, was the very purpose of the Gonzalez Act …

The Government reads §1089(e) simply to shore up §1089(a)’s immunization of medical personnel against tort liability. Levin, in contrast, reads §1089(e) to establish his right to bring a claim of medical battery against the United States under the FTCA without encountering the intentional tort exception. The U. S. District Court for the District of Guam, affirmed by the Ninth Circuit, dismissed Levin’s battery claim based on the reading of the Gonzalez Act proffered by the Government. We find the Government’s reading strained, and Levin’s, far more compatible with the text and purpose of the federal legislation. We therefore reverse the Ninth Circuit’s judgment …

[W]e hold that the Gonzalez Act direction in 10 U. S. C. §1089(e) abrogates the FTCA’s intentional tort exception and therefore permits Levin’s suit against the United States alleging medical battery by a Navy doctor acting within the scope of his employment.

Levin v. United States, et al., No. 11-1351. Decided March 4, 2013. Click here to read the Supreme Court’s decision in its entirety.

If you have been injured as a result of medical malpractice or other wrongdoing by armed forces medical personnel or other federal health care providers, you should promptly contact a medical malpractice attorney experienced with such claims to investigate whether you may bring a claim for your injuries and harms.

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