In Levin v. United States of America, the United States Court of Appeals for the Ninth Circuit upheld the dismissal of a claim for battery arising from the alleged performance of ocular surgery without the patient’s consent. The court held that “the Gonzalez Act makes the [Federal Tort Claims Act (FTCA)] the exclusive remedy for tort actions against military medical personnel.” Furthermore, the court stated that the FTCA preserves the government’s “sovereign immunity against ‘[a]ny claim arising out of . . . battery.’ 28 U.S.C. § 2680(h).” Thus, the plaintiff lacked a basis for recovery against either the United States or the individual physician.
The Ninth Circuit specifically rejected the plaintiff’s contention that the Gonzalez Act waives the United States’s sovereign immunity for battery claims arising from medical care. 10 U.S.C. § 1089 (e) provides that “[f]or purposes of [the Gonzalez Act], the [FTCA’s preservation of immunity against battery claims] 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 court concluded that subsection (e) is “not . . . a waiver of sovereign immunity for battery claims brought against the United States, but . . . an expression of personal immunity from battery claims brought against military medical personnel.”
In so holding, the Ninth Circuit joins a minority of courts immunizing the government and its physicians for the most extreme and indefensible cases of medical malpractice
The Ninth Circuit’s opinion and the details of the case can be read here: http://www.leagle.com/xmlResult.aspx?page=2&xmldoc=In%20FCO%2020111123144.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7
