January 15, 2013
Steven A. Levin sued his military doctor and the United States for medical malpractice and medical battery for a procedure performed at the United States Naval Hospital in Guam. The United States substituted itself for the military doctor and claimed that they had sovereign immunity which barred the claim under the Gonzalez Act. Levin argues that the Gonzalez Act only removes liability from armed services medical personnel and does not create an immunity that would remove any possibility for recovery in medical battery suits against armed forces medical personnel. The United States contends that no waiver of sovereign immunity exists unless a statute’s explicit language creates a waiver. The lower courts dismissed Levin's case by stating that the United States' sovereign immunity did apply under the Gonzalez Act, therefore barring this case from continuing. Levin contends that to bar his claim because of sovereign immunity would be to prevent patients injured by military medical personnel from having an opportunity to recover for the pain and suffering caused by the medical mistake. The United States argues that to find an implied waiver of sovereign immunity in the Gonzalez Act would overturn the Supreme Court's long-standing precedent regarding waivers of sovereign immunity and create questions about when sovereign immunity is waived.
10 U.S.C. § 1089 concerns the defense of military medical personnel against claims for tortuous acts committed in the scope of employment. It directs that suits may be brought only against the United States under the Federal Tort Claims Act, which waives sovereign immunity. 28 U.S.C. §2680 (h) of the FTCA excludes some suits, including battery, from its waiver. Subsection 1089(e) states, "For purposes of this section, the provisions of section 2680 (h) ... shall not apply to any cause of action arising out of a ... wrongful act ... in the performance of medical ... functions ...."
The particular question presented is whether suit may be brought against the United States for battery committed to a civilian by military medical personnel acting within the scope of employment.
The broader question raises the same issue for the same and other claims against groups of government employees whose defense would fall under similarly worded statutes.
This Court has never addressed these issues.
Did the Gonzalez Act waive sovereign immunity for medical battery claims, thus allowing suits directly against the United States for medical battery by military doctors immune from suit under the Gonzalez Act?