Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McIntosh v. United States

United States District Court, D. Kansas

February 15, 2017

KYLE MCINTOSH, Plaintiff,
v.
UNITED STATES OF AMERICA and MARK WISNER, P.A. Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge

         Plaintiff Kyle McIntosh brings this case against defendants United States of America and Mark Wisner, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671, alleging that Wisner subjected him to inappropriate sexual comments, improper physical examinations, and solicitation of sexual acts. Plaintiff claims that the court has supplemental jurisdiction over his state claims against Wisner under 28 U.S.C. § 1367(a). This matter is before the court on defendant United States's Motion to Dismiss. (Doc. 9.) Defendant argues that plaintiff's complaint should be dismissed for lack of subject matter jurisdiction, insufficient service of process, and because it fails to state a claim under Federal Rules of Civil Procedure 12(b)(1), (5), and (6). Plaintiff cured service and properly served defendant as required by Fed.R.Civ.P. 4(i). (Docs. 22 and 23.) For the reasons set forth below, the court denies defendant's motion.

         I. Factual Background

         Plaintiff is a disabled veteran who sought treatment at the Dwight D. Eisenhower VA Medical Center (“VA”) located in Leavenworth, Kansas. Wisner provided medical care for plaintiff. Wisner was a physician's assistant (“PA”) for the VA, but represented himself to plaintiff as a medical doctor.

         Plaintiff alleges that Wisner conducted inappropriate physical examinations, made improper sexual comments and solicited sexual acts from him. He claims that Wisner was negligent when he violated the standard of care by conducting improper and/or unnecessary examinations of plaintiff's genitalia and by failing to wear gloves during these examinations. Plaintiff claims that Wisner failed to recognize his own impairment and refer plaintiff to another practitioner. Plaintiff also claims that Wisner was acting within the scope of his employment at the time he committed these acts-making defendant vicariously liable for Wisner's misconduct.

         Plaintiff states that in February 2015, Wisner executed a Consent Order for Surrender, which was filed by the Kansas Board of Healing Arts (“KBOHA”). Wisner admitted to using his position as a PA to commit sexual batteries against VA patients. In another letter, Wisner admitted that he was an impaired practitioner not capable of patient care and that he committed violations under Kan. Stat. Ann. § 65-28a05(a) and other governing Kansas statutes and regulations.

         Plaintiff also brings claims of negligent supervision and/or retention against defendant. Plaintiff alleges that defendant-via the VA-violated its duty to exercise reasonable care when it supervised and retained Wisner. He states that defendant knew or should have known that Wisner was unable to provide competent medical care to plaintiff and that Wisner victimized and was dangerous to other patients. Plaintiff also alleges that VA supervisors failed to monitor Wisner's clinical activities to ensure that they were within the authorized scope of practice and medically appropriate as required by VHA Directive 1063 and/or the Physician Assistant Licensure Act (“PALA”), Kan. Stat. Ann. § 65-28a01. Plaintiff claims that the VA had knowledge of Wisner's misconduct, but failed to take appropriate action to correct his misconduct.

         II. Legal Standards

         A. Rule 12(b)(1)

         Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate when the court lacks subject matter jurisdiction over a claim. Plaintiff claims that subject matter jurisdiction exists and has the burden of establishing it. Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008). Because federal courts are courts of limited jurisdiction, there is a strong presumption against federal jurisdiction. Sobel v. United States, 571 F.Supp.2d 1222, 1226 (D. Kan. 2008).

         Motions for lack of subject matter jurisdiction generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's jurisdictional allegations; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). For a facial challenge, the court accepts the plaintiff's factual allegations regarding jurisdiction as true. Id. at 1002. But for a factual attack, the court does not presume that the plaintiff's allegations are true. Id. at 1003. Rather, “[a] court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.” Id.

         B. Rule 12(b)(6)

         To the extent this court has subject matter jurisdiction, the court must determine whether plaintiff's action is subject to dismissal because it fails to state a claim upon which relief could be granted. The court grants a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) only when the factual allegations fail to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the factual allegations need not be detailed, the claims must set forth entitlement to relief “through more than labels, conclusions and a formulaic recitation of the elements of a cause of action.” In re Motor Fuel Temperature Sales Practices Litig., 534 F.Supp.2d 1214, 1216 (D. Kan. 2008). The allegations must contain facts sufficient to state a claim that is plausible-not merely conceivable. Id. “All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true.” Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984); see also Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). The court construes any reasonable inferences from these facts in favor of the plaintiff. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006).

         III. Discussion

         Under the FTCA, the United States has waived its sovereign immunity for injuries caused by the “negligent or wrongful act or omission” of a federal government employee while that employee is “acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). An action under the FTCA is the exclusive remedy for a plaintiff claiming personal injuries arising out of the negligent conduct of a federal employee, 28 U.S.C. § 2679(b)(1), and federal courts have exclusive jurisdiction over such actions, 28 U.S.C. § 1346(b)(1).

         A. Medical ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.