High Court Revives Suit Over Naval Surgery

WASHINGTON (CN) - The U.S. government does not have sovereign immunity from claims that its medical personnel injured a veteran in a botched cataract operation, the Supreme Court ruled Monday.

Steven Alan Levin underwent surgery to remove a cataract in his right eye and have it replaced with an artificial lens at the U.S. Naval Hospital in Guam in March 2003.

Levin later said that, just prior to surgery, he had twice withdrawn his consent to the operation based on his concerns over the equipment.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.

After Levin sued the doctor and the U.S. government for negligence and battery, a federal judge winnowed the case down to a battery complaint against the United States. In June 2009, the government challenged jurisdiction under an exception to the Federal Tort Claims Act. Though the FTCA waives government immunity to empower tort suits against it, it lists battery claims as an exception from that waiver.

Levin countered, however, that this exception is negated by Section 1089(e) of the Gonzalez Act, which addresses medical battery by an armed forces physician.

Though U.S. District Judge Frances Tydingco-Gatewood dismissed the case, and the 9th Circuit affirmed, that holding conflicted with an earlier decision in the 10th Circuit and the Supreme Court took up the case in September 2012.

It revived Levin's complaint Monday, finding "the govern­ment's reading strained, and Levin's, far more compatible with the text and purpose of the federal legislation."

"The choice between these alternative readings of §1089(e) is not difficult to make," Justice Ruth Bader Ginsburg wrote for the court. "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."

The government had defended its logic with Section 7316, a 1965 law that confers immunity on medical person­nel of the Department of Veterans Affairs, but Ginsburg noted that Congress added a similar exception to that law in 1988.

"This phrasing, which refers to 'any person described in [§7316(a)]' - i.e., any 'health care employee of the' VA - does indeed express Congress' intent to abrogate §2680(h), the government acknowledges," according to the ruling. "But §7316(f) does so, the government adds, with the unmistakable clarity the Gonzalez Act lacks.

"We see nothing dispositively different about the word­ing of the two provisions."

Though the opinion was mostly unanimous, Justice Antonin Scalia would not join in two of Ginsburg's footnotes.

One footnote fortifies the plain statutory reading with a 1976 Senate Report on the Gonzalez Act, which states that Section 1089(e) was enacted to "nullify a provision of the Federal Tort Claims Act which would otherwise exclude any action for assault and battery" from FTCA coverage.

The other footnote notes a 1987 Senate Report that says Section 7316(f) was "patterned after" §1089(e).

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