High Court Takes on Sovereign Immunity

     (CN) – A man whose botched cataract operation calls into question whether medical personnel in the military are entitled to sovereign immunity will have his case heard by the Supreme Court.
     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     Levin later said when the operation was performed, he had withdrawn his consent to treatment, but doctor’s proceeded anyway. During the surgery, complications developed, and those complications — and their remedies — led to further pain and suffering and a multitude of follow up treatments.
     In 2004 Levin had to undergo a corneal transplant to relieve the condition. He sued the doctor and the U.S. government for negligence and battery shortly thereafter
     In June 2009, U.S. District Court Judge Frances M. Tydingco-Gatewood granted the government’s motion to dismiss the case, holding that Levin failed to allege grounds for federal subject matter jurisdiction.
     Specifically, Tydingco-Gatewood found that neither of the asserted basis Levin was relying on to assert his claim under the Federal Torts Claims Act waives the United States’ sovereign immunity.
     “Section 1089 does not do so because the best reading of the text, the case law, and the legislative history all indicate that the statute was solely intended to protect Armed Forces medical workers from personal liability – not to enable tort plaintiffs to bring claims they could not otherwise bring under the FTCA,” Tydingco-Gatewood wrote. “Section 7316 does not apply, and even if he did, it should not be read to wave the United States’ immunity from battery claims for the same reasons that Section 1089 should not be so read.”
     In November 2011, the 9th Circuit affirmed the ruling, finding that medical personnel in the military were indeed entitled to sovereign immunity against the claims. The ruling put the court at odds with an earlier decision in the 10 Circuit, on which Levin was relying as precedent.
     Levin’s case is one of two pro se cases granted by the court this week.

%d bloggers like this: