Interpreting the statutes involved, the Court has held the plaintiff may bring the claim. You can read the full opinion here. Here is the syllabus:
The Federal Tort Claims Act (FTCA) waives the Government’s sovereign immunity from tort suits, . . . but excepts from the waiver certain intentional torts, including battery, . . The FTCA, as originally enacted, afforded tort victims a remedy against the United States, but did not preclude suit against the alleged tortfeasor as sole or joint defendant. Several agency-specific statutes postdating the FTCA, however, immunized certain federal employees from personal liability for torts committed in the course of their official duties. One such statute, the Gonzalez Act, makes the remedy against the United States under the FTCA preclusive of any suit against armed forces medical personnel. . . . Congress subsequently enacted comprehensive legislation, the Federal Employees Liability Reform and Tort Compensation Act (Liability Reform Act), which makes the FTCA’s remedy against the United States 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.The Court of Appeals for the Ninth Circuit affirmed but the Supreme Court reversed holding that the government is not immune and, therefore, Levin’s suit against the United States can go forward. For all the relevant documents related to the case including briefs and opinions go here.
Petitioner Levin suffered injuries as a result of cataract surgery performed at a U. S. Naval Hospital. He filed suit, naming the United States and the surgeon as defendants and asserting, inter alia, a claim of battery, based on his alleged withdrawal of consent to operate shortly before the surgery took place. Finding that the surgeon had acted within the scope of his employment, the District Court released him and substituted the United States as sole defendant. The Government moved to dismiss the battery claim, relying on the FTCA’s intentional tort exception. Levin countered that the Gonzalez Act. . . renders that exception inapplicable when a plaintiff alleges medical battery by a military physician. The District Court granted the Government’s motion to dismiss.