Levin v. United States
September 25, 2012
Case #: 11-1351
Court Below: 663 F.3d 1059 (9th Cir. 2011).
Full Text Opinion: http://www.ca9.uscourts.gov/datastore/opinions/2011/11/23/09-16362.pdf
Tort Law: Whether the United States and individual military personnel acting within the scope of their employment can be sued for the common law tort of battery.
After consultation with a military doctor, Petitioner gave informed consent to receive cataract surgery from the Ophthalmology Department of the United States Naval Hospital on Guam. Petitioner was unsuccessful in his attempt to withdraw consent prior to surgery and suffered complications.
Petitioner sued the United States and the doctor who performed the surgery for medical malpractice and battery. The United States claimed that the Federal Tort Claims Act (FTCA) expressly preserves sovereign immunity against battery claims. The district court agreed and dismissed the case. The Court of Appeals for the Ninth Circuit affirmed.
On appeal, Petitioner argues that the FTCA, when read with the Gonzalez Act, 10 U.S.C. § 1089, allows for waiver of sovereign immunity in common law battery claims against the United States and individual military personnel.