X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

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.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at customercare@alm.com

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2017 ALM Media Properties, LLC. All Rights Reserved.