Levin v. United States

• [Questions Presented]
• [Issues]
• [Facts]
• [Discussion]
• [Analysis]

Issues

Did the Gonzalez Act waive sovereign immunity for medical battery claims, thus allowing suits directly against the United States for medical battery by military doctors immune from suit under the Gonzalez Act?

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Facts

Steven A. Levin filed a claim in the United States District Court of Guam for battery and medical malpractice against the United States and a U.S. Navy doctor, Lieutenant Commander Frank M. Bishop. Bishop was Levin’s doctor in the Ophthalmology Department at the U.S. Naval Hospital in Guam. Prior to 2003, Levin was referred to Bishop to have a cataract in Levin’s right eye examined. Bishop discussed treatment options with Levin and Levin eventually decided on a procedure known as a “phakoemulsification with intraocular lens placement.” Levin gave his informed consent on two separate occasions and further signed two separate consent forms prior to the surgery. Bishop performed the procedure in March 2003 at the U.S. Naval Hospital in Guam. However, Levin states that he revoked his consent twice before the procedure began. Levin claims to have revoked consent first when the surgical equipment entered the room and second after he was anesthetized.

Despite Levin's claim of revoking consent, the surgery commenced. During the procedure, Levin’s iris or pupil began to contract and the surgeons required a hook-like “retractor” to hold open the iris. Levin suffered from “corneal clouding,” which Dr. Bishop claims he discussed with Levin as a possible risk during his informed consent session. However, Levin also claimed to have suffered from “severe corneal edema” that caused pain, suffering, and diminished visual acuity among other things. Both parties agreed that there was a need for continuing treatment with uncertainty of success.

After Levin filed suit in the district court, the United States moved to substitute itself for Dr. Bishop, without objection from Levin. The district court first dismissed Levin’s claim of medical malpractice because there was no genuine issue of fact. Later, the court dismissed the battery claim for lack of subject-matter jurisdiction because the United States retains sovereign immunity against all claims unless the government waives that immunity. The district court further found that the battery claim fell under the Federal Tort Claims Act (“FTCA”), which contains a clear exception of the FTCA’s sovereign immunity waiver that allows the United States to retain immunity for battery claims.

Levin appealed the lower court’s ruling on the battery claim to the United States Court of Appeals for the Ninth Circuit but did not seek to appeal the district court ruling on the malpractice claim. The circuit court affirmed the decisions to uphold the United States’ sovereign immunity and to prevent the suit from continuing. On September 25, 2012, the Supreme Court granted certiorari on the issue of the government’s waiver of sovereign immunity for common law battery claims.

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Discussion

Levin argues that in passing the Gonzalez Act, Congress did not mean to leave victims of intentional torts with no recourse, but rather Congress meant to establish that victims must direct their claims against the government and not individual government personnel. The United States argues that the Supreme Court has repeatedly held that sovereign immunity is not waived unless it is explicitly and unequivocally expressed in the statutory text.

Levin views the Gonzalez Act as protecting medical personnel in certain government departments from liability by transferring the liability to the government. Levin argues that broadening the Gonzalez Act's scope to bar medical malpractice claims for the entire armed forces, along with other departments, will leave individuals with no recourse to seek compensation for suffering caused by failed medical procedures. Levin contends that if the Court does not waive the United States' sovereign immunity, the government will be protecting its medical personnel at the expense of victims. Instead, Levin takes the position that the government should indemnify medical employees but still allow for recourse against the government or through insurance. Levin asserts that barring all medical battery claims with sovereign immunity will give the government and its medical employees no beneficial incentive to exercise proper care for patients, which Levin claims faces squarely against the original purpose of the Gonzalez Act. Further, Levin states that denying a waiver of sovereign immunity here and preventing Levin's case from proceeding would go against Congressional intent by barring all recovery for an entire class of tort victims. Levin contends that if the Court does not clearly distinguish between medical battery and other medical malpractice claims, this lack of clarity will create confusion among the lower courts. Levin contends that restricting the sovereign immunity waiver would bar medical battery claims under the Gonzalez Act. Levin suggests that if medical battery claims are barred, many claimants will try to file other medical malpractice claims and the courts will have to decipher the unclear line between the two torts.

The United States argues that the Gonzalez Act's sole purpose is to protect certain medical personnel from liability. The United States takes the position that Congress never intended to create a way for claimants to sue the United Sates after removing liability from the medical personnel. The United States claims that the FTCA already makes the distinction between medical battery and other medical malpractice claims. The United States suggests that the FTCA applies sovereign immunity to intentional torts. The United States argues that following Levin’s reading of the Gonzalez Act would create a disparity between claims against medical personnel in the armed forces and claims against medical personnel in other branches of government. The United States claims that sovereign immunity is clearly maintained in other federal laws when it pertains to medical personnel from other federal departments, and to allow for Levin’s view would create a disparity that is incongruous with Congressional intent. The United States contends that long-standing Supreme Court precedent requires explicit waivers of sovereign immunity, and to find for Levin would create an anomaly that goes against that long-standing precedent.

The outcome of this case will affect many claimants who seek remedy against the United States in certain medical malpractice claims. The outcome will likely not affect a very large group of people because it is unlikely that the Court will overturn its long-standing precedent relating to broad waivers of sovereign immunity. Rather, it is more likely that the Court, if it agrees with Levin, will create a narrow waiver of sovereign immunity only pertaining to medical malpractice claims made against armed forces medical personnel. However, if the Court does not find a waiver of sovereign immunity, it could severely detriment those who seek recovery after an unsuccessful surgery performed by armed forces personnel.

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Analysis

In this case, the Supreme Court will decide whether the Gonzales Act, codified as § 1089 in Title 10, waived any sovereign immunity preserved for medical battery cases under the Federal Tort Claims Act. The Gonzalez Act ensured immunity for military medical personnel from personal civil suits for actions performed within the scope of their employment. The Federal Tort Claims Act (FTCA) creates a broad waiver of sovereign immunity for certain causes of actions, but also contains important exceptions where that waiver does not apply. The legal arguments in this case will likely revolve around the text and structure of the Gonzalez Act, interpretations of Congressional intent to waive sovereign immunity for medical battery claims, and the potential for individual medical personnel liability in state court.

Text and Structure of the Gonzalez Act

The United States argues that the Gonzalez Act does not waive sovereign immunity in cases of medical battery. The United States contends the Gonzalez Act only immunizes military medical personnel from suits relating to actions within the scope of their employment. The United States argues that section (a) of the Gonzalez Act prohibits medical battery lawsuits because claimants must file all suits against the United States exclusively under the FTCA. The United States alleges that Levin’s reading of section (e) of the Gonzalez Act, which interprets the Act to revoke the FTCA intentional-tort exception in addition to immunizing military medical personnel from suit, goes too far.

Levin argues that section (e) enacted an additional waiver of sovereign immunity for medical battery cases beyond those covered by the FTCA. Levin alleges that section (e) consists of two different segments: the introduction, “[f]or purposes of this section,” and the operative segment, which covers a cause of action arising from the actions of medical personnel performed within the scope of their employment. Levin argues that the introductory segment restricts the scope of the operative segment to claims of malpractice, including medical battery. Levin argues that this restriction makes the United States liable for medical battery under the FTCA. Levin also argues that the United States is responsible for shielding medical personnel from any individual liability that would arise from a claim brought in state court.

Interpretation of Congressional Intent to Waive Sovereign Immunity

Levin contends that had Congress intended to retain sovereign immunity in cases of medical battery, the statute’s text would have made this clear. Levin argues that when Congress chose not to clarify section (e) of the Gonzalez Act, Congress intended for victims to be able to file medical battery suits against the United States. Levin argues that the usual rule that sovereign immunity waivers must be unequivocal does not apply to section (e) because the FTCA uses broad and “sweeping” language to waive sovereign immunity. Levin argues that the proper interpretive rule identifies “those circumstances which are within the words and reason of the exception – no less and no more.” Levin argues that even if the “unequivocal waiver” rule applies, section (e) still permits suits for medical battery. Levin alleges that this stricter construction still allows for the use of ordinary means of statutory construction, which supports that section (e) waives sovereign immunity.

The United States argues that if section (e) waives sovereign immunity, such waiver must be unequivocal. The United States argues that where a statute is ambiguous, courts must interpret the text in favor of retaining, rather than waiving, sovereign immunity. The United States asserts that ambiguity exists if a possible alternative interpretation of the statute exists that supports the retaining sovereign immunity. The United States argues that, not only is an interpretation that sovereign immunity exists here plausible, it is the more likely scenario, thus the text of the Gonzalez Act, which was enacted after the FTCA, requires an unequivocal waiver of sovereign immunity. The United States additionally supports this with citations claiming the Court has continually reaffirmed this interpretation of sovereign immunity.

Individual Liability of Medical Personnel in State Court

Levin alleges that the structure of the Gonzalez Act supports that Congress did not intend to deny victims a forum for redress. In support, Levin asserts that the Gonzalez Act provides two means of redress: either directly against the United States or indirectly by suing the medical personnel indemnified by the United States. Levin contends that the second available method is a “catch-all category” where “the circumstances . . . preclude the remedies of third persons against the United States.” Levin argues that this means claimants may bring cases against the United States under the Gonzalez Act provisions even where cases are unavailable under the FTCA. Levin thus argues that even where a victim cannot sue under the FTCA, section (c) of the Gonzalez Act requires that courts remand the case to a state court where the case may continue directly against the employee. Levin concludes that the structure of the Gonzalez Act suggests Congress intended for victims to have some forum for redress, either in federal court against the United States directly or in state court against the employee, where the United States is still responsible for indemnifying and insuring the employee for any potential judgments. Levin contends that in light of this Congressional intent, the exception in section (e) for suits covered by the Act parallels Congress’ dual goals.

Responding to Levin’s argument that the Gonzalez Act allows for individual liability, the United states contends that section (e) was enacted for the opposite reason: to protect medical personnel from the potential for individual liability. The United States argues that section (c) allows a court to remand a case to state court for individual liability only where the court has determined that medical personnel acted outside the scope of their employments, therefore not immune from liability. The United States contends that section (e) acts in combination with section (a) to prohibit lawsuits against military medical personnel even where the victim has no other forum for redress. While the United States agrees that the government may indemnify or insure medical personnel acting within the scope of their employment, the United States argues that this only applies in circumstances where FTCA remedy is unavailable because the individual has deployed to a foreign country and faces suit in a foreign court. . Thus, the United States concludes that where the potential for FTCA remedy is available through territorial jurisdiction but precluded by subject matter jurisdiction, Congress did not intend to waive sovereign immunity for medical battery claims.

Distinction Between Medical Negligence and Medical Battery Claims

Levin argues that the Ninth Circuit’s distinction between medical negligence claims, which the FTCA allows, and medical battery claims, which the FTCA does not permit, is counterintuitive. Levin claims that Congress intended for the two types of claims to receive similar adjudication, thus allowing medical battery cases to be filed under the FTCA. In support of this contention, Levin claims that state laws, which would govern cases not allowed by the FTCA under section (c), vary widely and only serve to confuse potential victims seeking a forum for redress.

The United States responds that Congress has intentionally treated medical battery claims and medical malpractice claims differently. The United States claims that intentional torts make notoriously difficult cases because “lack of consent (i.e., medical battery) is ‘easily exaggerated’ and ‘difficult to defend,’” whereas, malpractice claims rely on more reliable evidence provided by expert testimony . In support, the United States points to the facts here, arguing that although petitioner sued for both medical malpractice and medical battery, he was unable to provide expert testimony sufficient to preserve his malpractice claim from dismissal, while his current claim of medical battery remains. The United States alleges that because medical battery claims are “easy to allege but difficult to disprove,” Congress intended to treat the claims differently.

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Conclusion

Levin claims that he was injured by the negligence of Dr. Bishop. Levin agrees that the United States should indemnify Dr. Bishop under the Gonzalez Act, but Levin does not agree with the United States’ claim that sovereign immunity bars Levin's suit. Instead, Levin suggests that the Gonzalez Act waives the United States' sovereign immunity. The United States counters that it has sovereign immunity because the text of the Gonzalez Act does not explicitly waive preexisting immunity. If the Supreme Court finds that sovereign immunity is waived even without explicit language, the decision could greatly alter the Court’s precedent and increase the number of cases brought against the United States. However, if the Supreme Court does not find a waiver of sovereign immunity, the decision may prevent any recovery for a victim who continues to suffer due to his injuries and prevent future victims from recovering for their injuries.

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