Follow Up on Levin v. United States

We now have the answer to the question regarding the Federal Tort Claims Act and the Gonzalez Act that was argued to the United States Supreme Court in Levin v. United States.  We wrote about this a few weeks ago.

The starting point is that the United States has immunity from lawsuits filed against it.  If the U.S. wants to waive that immunity, it may do so.  The FTCA is one such example where the U.S. waived its immunity for tort suits.  However, the FTCA carefully waives immunity for suits in negligence, but not intentional torts, such as battery.

In general, the FTCA does not preclude a potential plaintiff from naming not only the U.S. as a defendant, but also a person working on behalf of the U.S.  However, many agencies have passed further legislation that limits the liability of U.S. employees, leaving the U.S. as the only proper defendant in a civil lawsuit.  The Gonzalez Act is one such law.  It purports to make a suit against the U.S. as the exclusive remedy for any suits against armed forces medical personnel.

However, the Gonzalez Act also contains language that gave rise to this case on appeal.  The language reads, “[f]or purposes of this section,” the intentional tort exception to the FTCA “shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical . . . functions.”  10 U.S.C. 1089(e).  The United States, the district court, and the Ninth Circuit, all read that provision to mean that that language leaves untouched the intentional tort exception to the FTCA.  They reasoned that the opposite construction would defeat the express language of the FTCA and that waivers of immunity must be clear and unequivocal.

On final appeal, the Supreme Court noted that the language does, in fact, render the intentional tort exception inapplicable to cases involving medical battery.  In other words, it does not defeat the FTCA, but rather abrogates it in a narrow way.

The Court advanced different reasons for its holding.  Primarily important to our practice and many other like us, is that this previously unanswered question now has been answered and there will hopefully be some clarity in this area.

Medical battery is an interesting legal theory, very much hybrid in many ways, and by allowing these types of suits in the same way that more ordinary negligence suits have been allowed, better access to the courts by people who have been hurt by medical professionals is available.  In this way, we are encouraged by the Supreme Court’s treatment of these statutes at issue in Levin.


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