Monday, January 21, 2013

US Supreme Court to decide case on sovereign immunity for battery claims by medical personnel

Last week, the US Supreme Court heard oral arguments in Levin v. United States, in which the court has been asked to decide whether a civilian may bring a battery claim against the United States for injuries allegedly caused by military medical personnel during the performance of their duties, or, more specifically, whether such claims barred by sovereign immunity.

In this case, the plaintiff, a military veteran, claimed that a Navy physician performed an operation even though the plaintiff had withdrawn his consented to it.  The lower court held that the claim was barred by the exception in the Federal Torts Claims Act which retains sovereign immunity for certain intentional tort claims.  The plaintiff, however, argues that another statute provides an exception to the exception and that, thus, the state has waived its immunity.  This new statute is known as the Gonzalez Act, and the argument is based on section 1089(e) of the act which states that "[f]or purposes of this section, the provisions of section 2680(h) of title 28 shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations)."  Section 2680(h) of title 28 is the section of the FTCA which retains immunity for battery.

The Ninth Circuit agreed that the plaintiff's reading of the Gonzalez Act is plausible, but concluded that Section 1089(e) did not waive the government’s immunity as to battery claims.  The Circuit Court's opinion is available here.  For a detailed discussion of the argument and the court's opinion go here.  For a review of the oral argument before the Supreme Court, go here.  For copies of all the relevant documents filed in the case, go here.

In his review of the oral argument, the author concludes that "[i]t appears likely that the Court will reverse the Ninth Circuit’s decision and hold that Section 1089(e) waives the government’s sovereign immunity as to claims like [the plaintiff's]".  Given the discussion of the issue, and the Court's past history, I am skeptical.  Whatever the decision, it will have important implications.  Stay tuned.

1 comment:

Max Kennerly said...

When I first started practicing, I had to do a response to a motion in limine in an appalling medical malpractice case in which a doctor had negligently perforated a patient's bowel, negligently failed to recognize the perforation, and then repeatedly dissuaded the patient from receiving follow-up care at an ER, including by prescribing excessive amounts of narcotics. The patient died a horrible death by sepsis.

The motion in limine was filed by the defense to preclude references to other instances; it seems this doctor had a pattern of making this same horrible mistake, and of discouraging follow-up treatment.

I naively asked the lawyer on the case, "why do hospitals still give [the doctor] privileges?"

The lawyer responded, without a trace of humor, "They don't. Now [the doctor] is butchering soldiers in a military hospital."

As far as I know, the doctor is still out there, butchering soldiers, because there's no incentive to get rid of them.