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Vet Can Sue Government for Battery After Botched Surgery

By Robyn Hagan Cain | Last updated on

The Federal Tort Claims Act (FTCA) waives the government's sovereign immunity from tort suits, but certain intentional torts -- including battery -- are excluded from the waiver.

Monday, however, the Supreme Court ruled that the Gonzalez Act abrogates the FTCA's intentional tort exception and permits a medical battery suit against the U.S.

The plaintiff in the case, Steven Alan Levin, suffered from cataracts. Prior to a planned eye operation at a military hospital in Guam, he withdrew his consent to the surgery. Courthouse News Service explains:

Levin later said that, just prior to surgery, he had twice withdrawn his consent to the operation based on his concerns over the equipment. He says the doctor proceeded anyway, ultimately resulting in Levin's development of a corneal edema that has left him with diminished eyesight, discomfort and other side effects that require ongoing treatment.

Levin sued the Navy doctor who performed the surgery and the U.S. government. The government challenged jurisdiction under the battery exception to the FTCA. The district court dismissed Levin's complaint, and the Ninth Circuit Court of Appeals affirmed the decision.

The Supreme Court revived Levin's claim under the Gonzalez Act.

The Gonzalez Act provides that "the intentional tort exception to the FTCA 'shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical ... functions.'" The Federal Employees Liability Reform and Tort Compensation Act supplements the Gonzalez Act, and makes the FTCA's remedy against the U.S. exclusive for torts committed by federal employees acting within the scope of their employment. Under the Liability Reform Act, federal employees are shielded without regard to agency affiliation or line of work.

In a mostly-unanimous decision written by Justice Ruth Bader Ginsburg -- Justice Scalia took exception to two footnotes -- the Court held that Levin could proceed with his suit. The Court concluded, "Section §1089(e)'s opera­tive clause states, in no uncertain terms, that the inten­tional tort exception to the FTCA, §2680(h), 'shall not apply,' and §1089(e)'s introductory clause confines the abrogation of §2680(h) to medical personnel employed by the agencies listed in the Gonzalez Act."

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