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Patient may sue government for battery, says US high court

A plaintiff may bring a lawsuit against the United States alleging medical battery by a Navy doctor acting within the scope of his employment, the U.S. Supreme Court has ruled.

The case involves a patient who signed a consent form to undergo cataract removal surgery at a naval hospital, but claimed that he changed his mind just before being anesthetized and revoked the consent orally.

The surgeon performed the surgery anyway, and the patient 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. That law provides that the federal government be substituted as the sole defendant in any tort suit against military medical personnel for work-related conduct, and 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 language of 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 government moved to dismiss the claim, citing sovereign immunity against intentional tort claims. The district court agreed and granted the motion. The 9th U.S. Circuit Court of Appeals affirmed.

But in a unanimous decision, the Supreme Court reversed, holding that the government’s sovereign immunity was abrogated by the language in the Gonzalez Act.

The Gonzalez Act’s “operative clause states, in no uncertain terms, that the intentional tort exception to the FTCA, ‘shall not apply,’ and [the law’s] introductory clause confines the abrogation [to]medical personnel employed by the agencies listed in the Gonzalez Act,” Justice Ruth Bader Ginsburg wrote in the opinion. The plaintiff’s claim, therefore, may proceed.

U.S. Supreme Court. Levin v. U.S., No. 11-1351. March 4, 2013.

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