In a move that surprised many, the Supreme Court recently ruled that the federal government does not have sovereign immunity from a veteran’s lawsuit against a U.S. Navy doctor for medical battery. The unanimous ruling is based on a provision in the Gonzalez Act (10 U.S.C. §1089) which states that the Federal Tort Claims Act’s (FTCA) intentional tort exception does not apply to medical malpractice cases. Military medical malpractice attorneys are calling it a victory for military families and veterans.
The ruling comes by way of a legal battle that began with a lawsuit filed in 2005 by Steven Levin, an armed forces veteran living in Guam, against the U.S. government and Navy physician Frank Bishop. Bishop had determined that Levin needed surgery for a cataract in his right eye. Though he had twice consented in writing, Levin opted out of the procedure orally on the day the surgery was scheduled, citing concerns about Bishop’s equipment. Despite Levin’s withdrawal of consent, Bishop performed the surgery anyway. Complications led to Levin developing a corneal edema, which required a corneal transplant, diminished his eyesight and caused extreme discomfort, among other side effects.
Levin sued the U.S. Government for medical malpractice and medical battery in federal district court in Guam. The government argued that Levin’s battery claim must be dismissed due to the FTCA explicitly granting the U.S. immunity against battery lawsuits. 28 U.S.C. §2680(h). The Guam District Court dismissed Levin’s case, but he eventually made it to the U.S. Supreme Court. The Court held that Levin’s battery claim could go forward because of the little-known Gonzalez act. While the FTCA (enacted in 1946) gave the government significant legal immunity, the Gonzalez Act (enacted in 1976) chipped away at the government’s FTCA legal shield. Levin’s case is an interesting example of how a seemingly routine case can catch the attention of the country’s highest court.