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Steven Alan Levin v. United States of America; Frank M. Bishop

November 23, 2011

STEVEN ALAN LEVIN, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA; FRANK M. BISHOP, LCDR, MC, USNR 3855, DEFENDANTS-APPELLEES, AND ROBERT WRESCH, MOVANT-APPELLEE.



Appeal from the United States District Court for the District of Guam Frances Tydingco-Gatewood, Chief District Judge, Presiding D.C. No. 1:05-cv-00008

The opinion of the court was delivered by: Tallman, Circuit Judge

FOR PUBLICATION

OPINION

Submitted October 11, 2011*fn1 Honolulu, Hawaii

Before: Diarmuid F. O'Scannlain, Richard C. Tallman, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Tallman

OPINION

After his unsuccessful cataract surgery, Plaintiff-Appellant Steven Levin brought a claim for battery against the United States government and his United States Navy surgeon. The United States invoked the Gonzalez Act, 10 U.S.C. § 1089, immunizing individual military medical personnel from malpractice liability. We consider for the first time in our circuit whether § 1089(e) of the Gonzalez Act waives the govern-ment's sovereign immunity for common law battery claims. We hold that it does not, and we affirm the district court's dismissal of Levin's complaint for lack of subject-matter jurisdiction.

I

At some point prior to 2003, Levin was referred to the Ophthalmology Department of the U.S. Naval Hospital on Guam for evaluation of a cataract in his right eye. Lieutenant Commander Frank M. Bishop, M.D., performed the evaluation. He suggested a surgical procedure called "phakoemulsification with intraocular lens placement."

After discussing the procedure with Dr. Bishop, Levin gave his informed consent. He signed two consent forms, one entitled "Request for Administration of Anesthesia and for Performance of Operations and Other Procedures," and another entitled "Consent for Anesthesia Service." Dr. Bishop performed the eye surgery in March 2003.

Although Levin had previously given his informed consent to the procedure in writing, he claims he twice attempted orally to withdraw that consent just before the surgery. Levin suffered complications following the procedure, the full extent of which are unclear. Both sides agree that Levin requires continuing treatment and faces uncertain prospects for success.

Levin filed this suit in the United States District Court for the District of Guam, alleging negligent medical malpractice and battery. Levin cited the Federal Tort Claims Act (FTCA) as one of the bases for federal jurisdiction. His complaint named two defendants: Dr. Bishop and the United States. The United States immediately substituted itself for Dr. Bishop, as the Gonzalez Act authorizes.

The parties commenced discovery. Despite many deadline extensions, Levin was unable to come forward with any expert testimony supporting his malpractice claim. At the close of discovery, the United States filed a motion for summary judgment on both the malpractice and battery claims. The district court recognized that, in the absence of expert tes- timony, there was no triable issue of fact on Levin's malpractice claim. The court thus granted summary judgment on the claim under Federal Rule of Civil Procedure 56. The court denied the United States' motion for summary judgment on the battery claim, ...


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