March 04, 2013

Supreme Court Decides Levin v. United States

On March 4, 2013, the Supreme Court decided Levin v. United States, No. 11-1351, holding that the Gonzalez Act abrogates the Federal Tort Claims Act's (FTCA) intentional tort exception, permitting a suit against the United States alleging medical battery by a Navy doctor acting within the scope of his employment.

Alan Levin, a veteran, suffered injuries as a result of cataract surgery performed at the U.S. Naval Hospital in Guam. Levin signed forms consenting to the surgery, but alleged that he orally withdrew consent twice just prior to surgery out of concern about equipment in the operating room. The Navy physician nonetheless went forward with the surgery, and, as a result of complications during surgery, Levin developed corneal edema, a condition that left him with diminished eyesight and physical discomfort. Levin asserted claims of battery based on his alleged withdrawal of consent.

After exhausting his administrative remedies, Levin filed suit against the surgeon and the United States in U.S. District Court, asserting a claim of battery based on his claimed withdrawal of consent. The United States was substituted as sole defendant. The United States moved to dismiss, arguing that the FTCA's intentional tort exception, 28 U.S.C. § 2680(h), deprived the Court of jurisdiction. Levin argued that a section of the Gonzalez Act, 10 U.S.C. § 1089(e), renders the intentional tort exception inapplicable where a plaintiff alleges medical battery by an armed forces physician. The District Court dismissed the battery claim on this ground, and the Ninth Circuit affirmed.

The Supreme Court granted certiorari to resolve a conflict among the Circuits and reversed the Ninth Circuit. The operative clause of section 1089(e) instructs that 28 U.S.C. § 2680(h), the FTCA's intentional tort exception, "shall not apply to any cause of action arising out of . . . negligent or wrongful" conduct taken "in the performance of medical, dental, or related health care functions." This instruction is constrained by section 1089(e)'s introductory clause which limits the abrogation of the FTCA to medical personnel employed by certain agencies listed in the Gonzalez Act. The Court held that because Levin's battery claim fits within this category, he may sue to recover from the United States. The Court rejected the government's more complex and counterfactual interpretation that section 1089(e) acts to guard against a negative inference in the statutory language that would, in the absence of such language, preclude a suit against an individual defendant as well as the government.

Justice Ginsberg delivered the opinion for a unanimous Court. Justice Scalia did not join footnotes 6 and 7 of the decision.

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