Million Dollar Advocates Forum
Marquis Who's Who America's Biographer since 1899
American Association for Justice
The Chicago Bar Association
Illinois Trial Lawyers Association
Illinois State Bar Association

Supreme Court Allows Medical Malpractice Suit Against Gov't Doctor

April 11, 2013

In the United States, the federal government cannot be sued unless it has waived its immunity from suit or consented to the suit. This is known as sovereign immunity. In a recent ruling, the U.S. Supreme Court found that medical personnel employed by the United States government are not immune from a medical malpractice case filed by a veteran claiming injuries from an unsuccessful operation.

In 2003, following a referral to the U.S. Naval Hospital on Guam to evaluate a cataract, Steven Levin met with Lt. Commander Frank Bishop, M.D. The doctor recommended a surgical procedure to correct the cataract problem, and Levin signed two forms stating his informed consent. As a result of the surgery performed in March 2003, Levin developed a corneal edema and suffered from diminished vision and other complications requiring ongoing treatment. In a medical malpractice and battery lawsuit filed against Dr. Bishop and the United States government, Levin claims he twice tried to withdraw his consent due to personal concerns, but the doctor proceeded with the surgery.

The United States substituted itself in place of Dr. Bishop when Levin filed suit in district court. The court dismissed the medical malpractice suit for lack of genuine issue of fact and later dismissed the battery claim under an exception to the Federal Torts Claims Act (FTCA), stating that the U.S. retains sovereign immunity against all claims unless the government waives that immunity. Levin then appealed the lower court's ruling on the battery claim to the U.S. Court of Appeals for the Ninth Circuit on the basis that Section 1089 (e) of the Gonzalez Act (which covers medical battery by armed forces medical personnel) negated that exception. The higher court agreed with the district court's ruling of sovereign immunity and dismissed the case, but a conflict with an earlier ruling in the 10th Circuit allowed the case to move on to the Supreme Court.

In their March 2013 ruling in favor of Mr. Levin's case, the U.S. Supreme Court stated that they found, "the government's reading strained, and Levin's, far more compatible with the text and purpose of the federal legislation." Writing for the court, Justice Ruth Bader Ginsburg said that though each side took a different meaning from Section 1089 (e), the justices found it easy to agree on their opinion. The ruling was mostly unanimous, with Justice Antonin Scalia voicing exception to two footnotes written by Ginsburg.

Sources:, High Court Revives Suit Over Naval Surgery, 3-4-13

Cornell University Law School, Levin v. United States, viewed 3-28-13, United States Court of Appeals, 9th Circuit, Levin v. United States, viewed 3-28-13

Client Reviews
Thorough, articulate, and extremely knowledgeable of the law. Jason is someone I would highly recommend to family and friends. He represented me in an automobile case and was very happy with the overall experience and outcome! Joni S.
Jason handled a very challenging auto accident case for me. My injuries were all based on preexisting conditions that were made worse by the accident. He did an amazing job proving up my case, which included destroying the defense expert at deposition. In the end, I received an excellent settlement on a tough case. Jason is a very smart, talented, and diligent lawyer who I would highly recommend to anyone. Phil S.