United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge
John Doe D.P. 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, and 38 U.S.C. § 7316(a), (f), alleging
that defendant Wisner subjected him to unnecessary and/or
improper examinations of his genitals and elicited
unnecessary private information. Plaintiff claims that the
court has supplemental jurisdiction over his state claims
under 28 U.S.C. § 1367(a). This matter is before the
court on defendant United States's Motion to Dismiss.
(Doc. 48.) Defendant argues that plaintiff's second
amended complaint should be dismissed for lack of subject
matter jurisdiction and because it fails to state a claim
under Federal Rules of Civil Procedure 12(b)(1) and (6). For
the reasons set forth below, the court grants defendant's
motion in part and denies it in part.
is a veteran who sought treatment at the Dwight D. Eisenhower
VA Medical Center (“VA”) located in Leavenworth,
Kansas. Wisner treated plaintiff and provided medical care
for plaintiff's shoulder injury in 2013. Wisner also
prescribed medication for plaintiff's pain related to
these injuries. Wisner was a physician's assistant
(“PA”) for the VA, but represented himself to
plaintiff and the public as a medical doctor.
Count I, plaintiff claims that Wisner practiced and
prescribed medicine, including the performance of physical
examinations, under the close supervision of a VA physician.
Plaintiff alleges that Wisner was negligent when he violated
the standard of care by conducting improper and/or
unnecessary examinations of plaintiff's genitals without
gloves. Plaintiff further claims that Wisner used his
position to elicit unnecessary private information from him.
He pleads that Wisner failed to recognize his own impairment
and refer plaintiff to another practitioner. And plaintiff
states that Wisner's negligent acts occurred during
business hours at the VA hospital and were reasonably
incidental to his employment-making defendant vicariously
liable for his acts.
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.
brings claims of negligent supervision, retention, and hiring
against defendant in Count II. Plaintiff alleges that
defendant-via the VA-violated its duty to exercise reasonable
care when it employed, 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 claims that defendant possessed reason to
believe that employment of Wisner would result in undue risk
of harm to plaintiff and other patients.
lists incidents where Wisner was reported for misconduct and
misprescription of medications. Plaintiff also alleges that
defendant 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 Physical Assistant Licensure Act
(“PALA”). Plaintiff pleads that VA supervisors
failed to perform actions required by VHA Handbook 1100.19;
VHA Directive 2012-030; and VHA Directive 2004-029.
Count III, plaintiff brings a claim for outrage/intentional
infliction of emotional distress and argues that Wisner's
conduct was extreme and outrageous. He claims that
Wisner's conduct was intentional and conducted in
reckless disregard for plaintiff's well-being, thereby,
causing medically significant emotional injuries.
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).
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.
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).
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).
Exhaustion and Proper Notice
FTCA constitutes a waiver of the government's sovereign
immunity, [so] the notice requirements established by the
FTCA must be strictly construed. The requirements are
jurisdictional and cannot be waived.” Estate of
Trentadue ex rel. Aguilar v. United States, 397 F.3d
840, 852 (10th Cir. 2005) (quoting Bradley v. U.S. ex
rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir.
1991). Section 2675(a) “requires that claims for
damages against the government be presented to the
appropriate federal agency by filing ‘(1) a written
statement sufficiently describing the injury to enable the
agency to begin its own investigation, and (2) a sum certain
damages claim.'” Id. (citations omitted).
While the FTCA's notice requirements should not be
interpreted inflexibly, the goal of the administrative claim
requirement is to let the government know what it is facing.
Id. at 853; Benjamin v. United States, 85
F.Supp.2d 1034, 1036 (D. Colo. 2000).
filed an administrative claim on May 28, 2015, with the
Department of Veterans Affairs. Plaintiff sought treatment at
the VA for his primary medical care between 2010 and 2014.
Plaintiff claimed that while he was a patient, Wisner
subjected him to several intentional and/or negligent sexual
advances, assaults, and comments. Plaintiff sought $2, 500,
000 in damages. Plaintiff's administrative claim was
denied on March 8, 2016, and he filed the instant case within
claims that plaintiff did not reference Wisner misprescribing
or overprescribing plaintiff's medication in his
administrative claim. Defendant recognizes that plaintiff is
not pleading an independent claim of misprescription as a
separate cause of action, yet defendant argues that plaintiff
failed to exhaust his administrative remedies on this theory.
Plaintiff did not respond to defendant's argument.
a plaintiff's administrative claim need not elaborate all
possible causes of action or theories of liability, it must
provide notice of the facts and circumstances underlying the
plaintiff's claims.” Trentadue, 397 F.3d
at 853 (internal quotations omitted). Plaintiff did not claim
that Wisner's misconduct included misprescribing or
overprescribing medication. The government could have
reasonably concluded that an investigation into Wisner's
prescription practices was unnecessary. Cf. Lopez v.
United States, 823 F.3d 970, 977 (10th Cir. 2016)
(“Nothing in Lopez's administrative claim provided
the government with notice that it needed to investigate
whether the VA Hospital was negligent in credentialing and
privileging Kindt, and it was in turn deprived of any
opportunity to settle this potential claim without
litigation.”). Plaintiff did not provide the government
with sufficient notice of this claim and failed to exhaust
his administrative remedy on this matter.
Scope of Employment
Defendant characterizes Wisner's conduct as “sexual
misconduct.” Applying this characterization, defendant
argues that the court lacks jurisdiction because Wisner's
conduct was not within the scope of his employment. Sexual
battery and/or inappropriate touching and comments are not
within the duties that a PA is hired to perform, defendant
argues, and did not further the VA's business.
the FTCA, the United States is liable only for tortious acts
committed by employees “acting within the scope of
[their] office or employment.” 28 U.S.C. §
1346(b)(1). “Scope of employment” is determined
by the law of the place where the accident occurred.
Fowler v. United States, 647 F.3d 1232, 1237 (10th
Cir. 2011); see also 28 U.S.C. § 1346(b)(1). In
Kansas, an employee acts within the scope of his employment
when (1) he performs services for which he has been employed,
or (2) he does anything reasonably incidental to his
employment. O'Shea v. Welch, 350 F.3d 1101, 1103
(10th Cir. 2003) (citing Pattern Instructions Kansas 3d
107.06; Williams v. Cmty. Drive-In Theater, Inc.,
520 P.2d 1296, 1301-02 (Kan. 1974)). The test is not whether
the employer expressly authorized or forbid the conduct.
Id. Instead, the court asks whether the employer
should have fairly foreseen the conduct from the nature of
the employment and the duties relating to it. Id.;
see also Commerce Bank of St. Joseph, N.A. v. State,
833 P.2d 996, 999 (Kan. 1992).
claims that scope of employment is a factual determination.
Generally, this is correct, but the court may resolve this
question as a matter of law when only one reasonable
conclusion can be drawn from the evidence. See Wayman v.
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