United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge
John Doe A.L. 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. 26.) Defendant argues that plaintiff's 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 back injury. Wisner also prescribed
medication for plaintiff's pain related to this injury.
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 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.
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).
to dismiss 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).
Scope of Employment
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.
Accor N. Am., Inc., 251 P.3d 640, 646 (Kan.Ct.App. 2011)
(citing O'Shea, 350 F.3d 1101).
Slight Deviation Analysis
claims that Wisner's conduct was within the scope of his
employment because it was a “slight deviation”
from his duties. In O'Shea v. Welch, the Tenth
Circuit reviewed the Kansas jury instruction on scope of
employment, and determined that it is compatible with the
slight deviation analysis. O'Shea, 350 F.3d at
1106. “Application of the slight deviation analysis
allows for more flexibility and accuracy in the application
of the law to each fact scenario. The Kansas pattern jury
instruction . . . does not express a bright-line rule but
instead illustrates a type of slight deviation rule which
requires a determination of what is reasonably incidental to
employment and what conduct should have been fairly
the slight deviation analysis, an employee could pursue dual
purpose ventures without the conduct amounting to an entire
departure from the scope of employment. Id. at 1107.
“An employee does not cease to be acting within the
course of his employment because of an incidental personal
act, or by slight deflections for a personal or private
purpose, if his main purpose is still to carry on the
business of his employer. Such deviations which do not amount
to a turning aside completely from the employer's
business, so as to be inconsistent with its pursuit, are
often reasonably expected and the employer's assent may
be fairly assumed.” Id.
court reviews the following factors to determine whether an
employee has engaged in a slight or substantial deviation:
(1) the employee's intent; (2) the nature, time, and
place of the deviation; (3) the time consumed in the
deviation; (4) the work for which the employee was hired; (5)
the incidental acts reasonably expected by the employer; and
(6) the freedom allowed the employee in performing his ...