Justices tackle puzzling law in medical battery case

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Attempts to sort out the meaning of a confusing and oddly worded statute to determine whether a Navy surgeon is immune from liability for allegedly performing eye surgery without obtaining consent left the justices of the U.S. Supreme Court bleary-eyed.

The case, Levin v. U.S., is set against a backdrop of federal regulations designed to allow the government to be sued under some circumstances while shielding it from suits in other situations. The Gonzalez Act provides that the federal government be substituted as the sole defendant in any tort suit against military medical personnel for work-related conduct, meaning that such lawsuits may only be brought against the government under the Federal Tort Claims Act. The FTCA waives sovereign immunity for tort claims, except for certain intentional torts, including battery.

But the Gonzalez Act provides in part: “For purposes of this section, the [FTCA’s intentional tort exclusion] 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.”

The plaintiff, Steven Alan Levin, signed a consent form to undergo cataract removal surgery at a naval hospital, but claimed that just before being anesthetized he revoked the consent orally. A surgeon performed the surgery anyway, and Levin suffered complications.

He filed suit for negligence and battery against the surgeon, and the United States was substituted as the sole defendant pursuant to the Gonzalez Act. The district court granted the government’s motion to dismiss the claims.

The 9th Circuit affirmed, holding that the government did not waive its sovereign immunity for the battery claim, finding that the Gonzalez Act was not designed to “provide wiggle room for clever tort plaintiffs” seeking to get around the government’s sovereign immunity from intentional tort claims under the FTCA.

The Supreme Court granted Levin’s petition for certiorari.

‘Injured tort victims are injured tort victims’

At oral arguments on Tuesday, James A Feldman, a Washington solo practitioner focusing on Supreme Court litigation, argued on Levin’s behalf that the simplest explanation was the best: The “shall not apply” language in the Gonzalez Act refers to the immunity the government usually enjoys from intentional tort suits. With that waived, the battery suit should be able to proceed.

“You have to read it in context,” Feldman said of the statute’s language.

But several justices asked why another statute with similar wording – the Westfall Act, which covers torts committed by federal employees – has been interpreted to have the opposite meaning.

“Injured tort victims are injured tort victims,” said Justice Antonin G. Scalia. “It does seem rather odd that in one instance Congress would be concerned [about intentional tort liability] and the other not concerned.”

“I think the difference is that here they were dealing specifically with the problem of medical malpractice,” Feldman said. “Twelve years later when they got around to the Westfall Act, they weren’t looking at medical malpractice – they were looking generally at the whole problem of [lower-level] government employees being sued.”

Justice Sonia M. Sotomayor asked how far the immunity waiver signed by the plaintiff in the case could be applied.

“Let’s assume that it’s not an operation, but sexual behavior with a patient in their hospital room,” Sotomayor said. “Is that covered under the Gonzalez Act as a claim against the United States?”

“If it was an assault [committed] within the scope of the professional’s employment, then it would be,” Feldman said. “But it’s always the question of whether it’s within the scope of employment.”

Applying ‘shall not apply’

Pratik A. Shah, assistant to the solicitor general, argued that any waiver of sovereign immunity cannot be found absent clear statutory language.

“What can be more clear than ‘does not apply?’” Sotomayor asked, paraphrasing the statute’s language. “What more does it have to say?”

When Shah argued that the statute said more than that in an effort to limit the scope of any immunity waiver, Scalia jumped in to help him out.

“It didn’t want to say it ‘shall not apply’ for everything. It didn’t want to eliminate the intentional tort exception for everybody, right?” Scalia said. “It only wanted to eliminate it for the people covered by the Gonzalez Act.”

Justice Elena Kagan said that if the intent of Congress were to extend the government’s immunity against intentional tort suits to the military medical context, it picked a circuitous and confusing way to do it.

“I agree with you [that] Congress could have written this provision in a different way and more clearly,” Shah said.

“I’m saying something more than that,” Kagan said. “It could not have written it in a worse way.”

Shah tried to make the case as plain as possible.

“The ‘for purposes of this section’ language I think is the key phrase and this section refers to the Gonzalez Act.”

“I don’t think those are the key words,” Scalia said. “I think the key words are ‘shall not apply.’… It is not a hypothetical. It says they ‘shall not apply to any cause of action.’”

A decision is expected later this term.