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A Navy veteran who wrote his own petition to the U.S. Supreme Court won the right to pursue a medical malpractice claim against the United States in a unanimous decision by the justices on Monday. In Levin v. U.S., the court, in an opinion by Justice Ruth Bader Ginsburg, held that the Gonzalez Act permits Steven Levin to sue the United States for an alleged battery committed by a military doctor. Under the Gonzalez Act, the United States is substituted as the sole defendant for tort claims against military medical personnel, who are granted immunity from suit when performing medical functions. However, in the Levin case, the United States had argued that the intentional tort exception to the Federal Tort Claims Act (FTCA) preserved the government’s immunity from claims arising out of assaults or batteries committed by federal employees. Levin, a resident of Guam, had gone to the island’s U.S. Naval Hospital for an evaluation of cataracts in his right eye. He signed a written consent form for surgery, but claimed that he orally withdrew that consent twice immediately before the surgery. The surgeon performed the surgery anyway. Levin suffered severe complications from the surgery and has little useful sight in the eye. He sued, seeking damages against the United States and the military surgeon. After losing in the lower courts, Levin filed a petition for review in the Supreme Court. The justices granted review and appointed James Feldman of Washington, a former assistant to the solicitor general, as amicus curiae to present Levin’s argument. At the heart of the statutory interpretation dispute was a provision in the Gonzalez Act that stated, "for 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 mission in the performance of medical…function." After enactment of the Gonzalez Act, Congress passed the Federal Employees Liability Reform and Tort Compensation Act which made the FTCA the exclusive remedy against the United States. That act shielded federal employees without regard to their agency affiliations. In her opinion, Ginsburg said the Gonzalez Act language states "in no uncertain terms, that the intentional tort exception ‘shall not apply.’ The introductory clause to that provision simply limits the reach of the ‘shall not apply’ instruction to claims covered by the Gonzalez Act, i.e., claims against military medical personnel." Ginsburg called the government’s contrary reading the "let’s pretend" reading. Marcia Coyle can be contacted at mcoyle@alm.com.

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