January 14, 2013

162017_132140396847214_292624_nIt is very infrequent that the United States Supreme Court (“Supreme Court”) agrees to decide a medical malpractice case, and even rarer that it agrees to decide a case where the person seeking review is not represented by an attorney. But that is exactly what the Supreme Court has agreed to do in a case to be argued on January 15, 2013.  The case is Levin v. United States, Case No. 11-1351. The issue involves the relationship between the Federal Tort Claims Act (“FTCA”) and the federal Gonzalez Act with regard to medical malpractice claims against the United States. The question to be decided is whether suit may be brought against the United States for battery committed to a civilian by military medical personnel acting within the scope of employment.

The Underlying Facts

Mr. Levin alleged that the Veteran’s Administration (“VA”) was his health care provider. The VA referred him to the eye clinic at the United States Naval Hospital Guam for exams and then cataract surgery. On the day of the scheduled surgery, he was in the operating room with an IV inserted for conscious sedation when he had his first chance to discuss directly with the Navy surgeon his concerns about some pre-op eye drops that were not given as planned. The surgeon usually meets and talks with patients in the ante-room before they enter the OR. Mr. Levin asked to see the surgeon in the ante-room but Mr. Levin was told he would see him in the OR after he signed the consent for anesthesia and the IV was inserted.

Based on new information Mr. Levin first learned about in the OR, he changed his mind about having the surgery, expressed that he was withdrawing his consent for the surgery, and that he did not want the surgery. The surgery proceeded nonetheless and severe corneal edema resulted. He then filed his federal medical malpractice lawsuit.

Pre-trial proceedings resulted in only the battery claim (the willful or intentional touching of a person against that person’s will by another person) remaining in the medical malpractice lawsuit filed by Mr. Levin against the United States pursuant to the Federal Tort Claims Act (“FTCA”). The United States moved to dismiss the lawsuit for lack of subject-matter jurisdiction because the FTCA excludes battery claims from its waiver of sovereign immunity, which the District Court judge granted. The District Court held that the battery claim was barred by a provision of the FTCA’s “intentional tort” exception (28 U.S.C. § 2680(h)), which preserves the government’s immunity against certain torts, including “[a]ny claim arising out of . . . battery.” The dismissal was appealed and the United States Court of Appeals for the Ninth Circuit affirmed the dismissal and denied a petition for rehearing en banc.

The Relevant Federal Tort Claims Act (FTCA) Provisions

The FTCA (28 U.S.C. §§ 1346 (b), 2671-2680) in § 1346 (b) (1) provides that the U.S. district courts have exclusive jurisdiction of civil actions on claims against the United States, for money damages for personal injury caused by the wrongful act of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act occurred. Section 2671 provides that “acting within the scope of his office or employment,” in the case of a member of the military or naval forces of the United States, means acting in line of duty. Section 2679 states that the remedy against the United States provided by section 1346 (b) is exclusive of any other civil action or proceeding for money damages against the employee whose act or omission gave rise to the claim.

However, the FTCA has exceptions: § 2680 states that the provisions section 1346 (b) do not apply to ….  (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit …. and (k) Any claim arising in a foreign country.

The Relevant Gonzalez Act Provisions

The Gonzalez Act (10 U.S.C. § 1089), which protects medical personnel in the armed forces from individual malpractice liability for conduct within the scope of their employment, provides that the FTCA’s damages remedy against the United States is the exclusive means of recovery for plaintiffs alleging malpractice by covered employees. In particular, the Gonzalez Act provides with regard to defense of certain suits arising out of medical malpractice that (a) The remedy against the United States provided by section[ ] 1346 (b) … of title 28 for damages for personal injury … caused by the negligent or wrongful act or omission of any physician … or … other supporting personnel … of the armed forces … while acting within the scope of his duties or employment therein or therefor shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician … or other supporting personnel (or the estate of such person) whose act or omission gave rise to such action or proceeding …. but the Gonzalez Act also provides, (e) For purposes of this section, the provisions of section 2680 (h) of title 28 shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical … functions ….

Mr. Levin’s argument is that the Gonzalez Act intends to preserve a tort remedy for plaintiffs claiming medical battery by military employees and that the plain language of § 1089(e) that specifically states that the FTCA’s intentional tort exception “shall not apply” to tort actions arising from the conduct of medical personnel abolishes the exception for cases within the scope of the Gonzalez Act. The U.S. argues the well-established principle that waivers of sovereign immunity must be unequivocal and that § 1089(e) does not do so because it is allegedly subject to different interpretations.

The Supreme Court’s decision in the Levin case may provide guidance on how the unequivocal waiver rule governing waivers of sovereign immunity should be applied where the statutory language “the provisions of section 2680(h) of title 28 shall not apply” appears to authorize claims against the United States but the section does not specifically state that immunity is being waived.

If you or someone you know may have been injured as a result of medical malpractice in the United States, you should promptly seek the advice of a local medical malpractice attorney to investigate your possible medical malpractice claim for you and file a medical malpractice case on your behalf, if appropriate.

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