Medical Malpractice Goes to the Supreme Court

Levin v. United States, 568 U.S. (2013)

This doesn’t happen very often (on a previous occasion, Hui v. Castaneda, 559 U.S. 799 (2010), the Court ruled, unanimously, that an immigration detainee who allegedly received negligent medical treatment pursuant to the Public Health Service Act can only sue the United States under the Federal Tort Claims Act and cannot sue the government’s employees for civil rights’ violation under Bivens).

In Levin, the Government called into question the plain meaning of the Gonzalez Act, 10 U.S.C. § 1089, that makes the remedy against the United States under the Federal Tort Claims Act (FTCA) the only recourse for victims of malpractice allegedly committed by the armed forces medical personnel (subsection (a)), while providing, in subsection (e), that “For purposes of this section, the provisions of section 2680(h) of title 28 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…”.

Section 2680(h) of Title 28, excludes from the general waiver of the Government’s sovereign immunity from tort suits under FTCA a number of intentional torts, including battery. That is: although the Government generally stays immune against suits for battery and other intentional torts listed in 28 U.S.C. § 2680(h), the Gonzalez Act makes medical battery and other intentional torts that constitute medical malpractice actionable against the Government.

Mr. Levin’s sustainable complaint was about informed consent (he failed to support his negligence claim by an expert witness).  As a veteran, Mr. Levin underwent cataract surgery at the Naval Hospital in Guam. The surgery was carried out by an ophthalmic surgeon serving in the Navy. Mr. Levin argued that he withdrew his consent to the surgery but the surgeon nonetheless went on to perform it, to his detriment. Mr. Levin consequently sued the United States for battery under FTCA.

The Government managed to persuade the District Court and, subsequently, the Court of Appeals for the Ninth Circuit to dismiss this suit. The Ninth Circuit adopted the Government’s interpretation of 28 U.S.C. § 2680(h), holding that this provision aims to prevent “clever tort plaintiffs” from asserting battery claims against military doctors on the spurious theory that the Gonzalez Act’s preclusion works against negligence claims only. This interpretation contradicts the provision’s plain meaning (that the Government itself had endorsed in a previous litigation before the Supreme Court!).
Unsurprisingly, the Supreme Court ruled, unanimously, that FTCA allows all kinds of medical malpractice suits against the United States: those that sound in negligence and those that assert battery, assault or another intentional tort.

This decision is unquestionably correct.  And it also brings about an unintended beneficial consequence: it forestalls a serious anomaly that could beset our system of medical malpractice if the Court were to side with the Government. Specifically, the Court’s interpretation of 28 U.S.C. § 2680(h) prevents a distortionary disposition of suits for informed-consent violation that can be asserted against the Government under FTCA. FTCA’s core function is to remove the Government’s sovereign immunity against tort suits: this Act does not establish the causes of tort actions against the Government.

Those causes of action are determined by state law. Conditions under which patients can successfully sue doctors for informed-consent violations differ from one state to another. Some states allow patients to proceed on a regular negligence theory. Other states, however, allow patients to sue doctors for informed-consent violations only upon battery or assault theories. Adoption of the government’s interpretation of 28 U.S.C. § 2680(h) would therefore have created an intolerable “venue discrimination” between patients receiving medical treatment in different military facilities.

Take a veteran who undergoes surgery at the VAMC Hospital in Philadelphia, Pennsylvania. Assume that the veteran’s doctors fail to inform him about the surgery’s risks and benefits, thereby violating his right to informed consent. Under Pennsylvania law, violations of informed consent are only actionable under the assault / battery theory (see, e.g., Morgan v. MacPhail, 704 A.2d 617 (Pa. 1997)). Had the Government’s interpretation of 28 U.S.C. § 2680(h) been adopted, this and similarly situated veterans would not be able to sue the Government for violating their right to informed consent.  The veteran, however, would be able to assert an informed-consent violation against the Government if he chose to undergo surgery in a negligence jurisdiction: say, in New York or New Jersey.

This arbitrariness is intolerable and the Court did well to prevent it.