High court revives suit over eye surgery at Naval Hospital

WASHINGTON — The Supreme Court says a Guam man can sue the government for a Navy surgeon’s unsuccessful cataract surgery.

A unanimous court ruled on Monday for Steven Alan Levin, who was operated on in March 2003 at the United States Naval Hospital in Guam, a U.S. territory. Levin said he withdrew his consent before the operation began but doctors proceeded anyway. Levin suffered complications, which require ongoing treatment.

Levin filed suit for medical malpractice and battery against the surgeon, and the United States was substituted as the sole defendant pursuant to the Gonzalez Act.

The courts threw out the medical malpractice complaint and kept the battery charge. But the 9th U.S. Circuit Court of Appeals said the government is also immune from being sued for battery.

The Supreme Court reversed that decision on Monday, with Justice Ruth Bader Ginsburg writing for the court that Levin’s battery lawsuit against the government can move forward.

The Federal Tort Claims Act waives sovereign immunity for tort claims, except for certain intentional torts, including battery.

But the language of the Gonzalez Act provides in part: “For purposes of this section, the [FTCA’s intentional tort exclusion] 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.”

The government moved to dismiss the claim, citing sovereign immunity against intentional tort claims. The district court agreed and granted the motion. The 9th U.S. Circuit Court of Appeals affirmed.

But in a unanimous decision, the Supreme Court reversed, holding that the government’s sovereign immunity was abrogated by the language in the Gonzalez Act.

The Gonzalez Act’s “operative clause states, in no uncertain terms, that the intentional tort exception to the FTCA, ‘shall not apply,’ and [the law’s] introductory clause confines the abrogation [to]medical personnel employed by the agencies listed in the Gonzalez Act,” Justice Ruth Bader Ginsburg wrote in the opinion. The plaintiff’s claim, therefore, may proceed.

The case is Levin v. U.S., No. 11-1351.

The Associated Press contributed to this article.

Lawyers USA is a sister publication of The Daily Record.

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