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John Doe P.M. v. United States

United States District Court, D. Kansas

April 18, 2017

JOHN DOE P.M., Plaintiff,



         Plaintiff John Doe P.M. 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. 31.) 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.

         I. Factual Background

         Plaintiff 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 and back injuries between 2011 and 2014. 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.

         In 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.

         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 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.

         Plaintiff 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 the Physician 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.

         In 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.

         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. Exhaustion and Proper Notice

         “[T]he 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).

         1. Plaintiff's Claims

         Plaintiff filed an administrative claim on March 16, 2015, with the Department of Veterans Affairs. Plaintiff sought treatment at the VA for his primary medical care between 2010 and May 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 May 2, 2016, and he filed the instant case within six months.

         Defendant 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]lthough 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.

         B. Count I

         1. 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.

         Under 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).

         Plaintiff 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. Accor N. Am., ...

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