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Jury To Decide Medical Malpractice Case Involving Cataract Surgery At Naval Hospital

Steven Levin underwent cataract surgery at the U.S. Naval Hospital Guam and filed a claim for damages citing medical negligence and battery against the federal government. A federal judge recently ordered that a jury would be best suited to rule on the matter. The island of Guam in the western portion of the Pacific Ocean is one of five U.S. territories. The territory is home to The District Court of Guam in the capital city of Hagatna, which uses the U.S. Ninth Circuit Court of Appeals for appellate decisions.

Levin had given written informed consent to proceed with the operation, as well as a consent allowing the administration of anesthesia. Levin stated that he had orally withdrawn his consent to continue with the surgery both at a point after entering the room for surgery and again shortly after being administered anesthesia. The procedure was conducted and Levin developed a complication that can arise from cataract surgery where the cornea is “clouded”. The surgeon attested that this possibility had been reviewed during the formal process of consent. In addition, Levin was experiencing pain, confusion and some visual problems.

Both the surgeon, Dr. Frank Bishop, and Mikel Coates, who assisted with the surgery, denied that Levin had made any reference to cancelling or postponing the surgery. The defense suggested that Levin was delusional from the anesthetic, which led him to believe he had communicated his desire to postpone the operation. The District Court Judge, Frances Tydingco-Gatewood, expressed that Levin’s claim was best determined by a jury.

Under the Gonzalez Act, the U.S. government became the defendant in the matter, rather than the doctor himself. This act entitles the medical staff of the armed forces to sovereign immunity from civil claims. The plaintiff argued that the act only removed liability for individual military medical staff and does not bar overall recovery in medical battery claims. The government explained that sovereign immunity may not be waived unless specified is accordance with a statute. The lower court believed that sovereign immunity was applicable in the matter and dismissed the claim. Levin disagreed saying that barring his claim essentially meant that patients would have no opportunity to recover from such damages resulting from military medical mistakes. The government responded that the Supreme Court had long-established precedent that waivers could not be implied.

Levin felt that Dr. Bishop was negligent and that the Gonzalez Act indemnified him; however, the government should not be entitled to blanket immunity. As Levin sees it, individuals injured by government medical personnel have no means of recovery. The decision will soon be made by the Supreme Court, which could reverse the standing on whether waivers of sovereign immunity may be executed without explicit language allowing for it and how the Federal Tort Claims Act may apply.

About the Author

Briggs Bedigian
Briggs Bedigian

H. Briggs Bedigian (“Briggs”) is a founding partner of Gilman & Bedigian, LLC.  Prior to forming Gilman & Bedigian, LLC, Briggs was a partner at Wais, Vogelstein and Bedigian, LLC, where he was the head of the firm’s litigation practice.  Briggs’ legal practice is focused on representing clients involved in medical malpractice and catastrophic personal injury cases. 


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