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Doe v. United States

United States District Court, D. Kansas

May 10, 2017

JOHN DOE D. E., Plaintiff,
v.
UNITED STATES OF AMERICA, ROBERT A. MCDONALD, and MARK WISNER, P.A. Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge

         Plaintiff John Doe D. E. brings this case against defendants United States of America, Robert McDonald (Secretary of the Department of Veterans Affairs), 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 Wisner conducted an improper and/or unnecessary physical examination of plaintiff 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 defendants United States of America and McDonald's Motion to Dismiss. (Doc. 38.) Defendants argue 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 defendants' motion in part and denies it in part. Plaintiff does not oppose defendants' request to dismiss defendant McDonald (Doc. 42, at 1 n.1) and plaintiff's claims against him are dismissed.

         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 and provided medical care for plaintiff. Wisner was a physician's assistant (“PA”) by the VA, but represented himself to 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 an improper and/or unnecessary examination of plaintiff's genitals without gloves in October 2013. He claims that Wisner failed to recognize his own impairment and refer plaintiff to another practitioner. Plaintiff further alleges that Wisner used his position to elicit unnecessary private information from him and was negligent when he recommended a prostate exam when plaintiff was under the age of 30. And plaintiff claims 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 Wisner admitted to violating the Physician Assistant Licensure Act (“PALA”), Kan. Stat. Ann. § 65-28a01, by making inappropriate sexual comments to his patients, not meeting the appropriate standard of care, failing to keep accurate written medical records, performing unnecessary testicular and genital exams and other unnecessary contact of his patients for no legitimate medical purpose, and overmedicated patients.

         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 claims that Wisner was convicted of a sex-related crime that could have been discovered by the VA had it appropriately investigated Wisner's record. Plaintiff lists incidents where Wisner was reported for misconduct and misprescription of medications. Plaintiff alleges that defendant knew or should have known that Wisner was unable to provide competent medical care to plaintiff and that he victimized and was dangerous to other VA patients. Plaintiff also claims 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 PALA. Plaintiff alleges that VA supervisors failed to perform actions required by VHA Handbook 1100.19; VHA Directive 2012-030, and all preceding regulations; and VHA Directive 2004-029.

         Plaintiff also brings claims for negligent infliction of emotional distress, outrage, battery, and invasion of privacy - intrusion upon seclusion against all defendants.

         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 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.

         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. 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 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., Inc., 251 P.3d 640, 646 (Kan.Ct.App. 2011) (citing O'Shea, 350 F.3d 1101).

         a. Slight Deviation Analysis

         Plaintiff 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 foreseen.” Id.

         Under 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.

         The 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 job responsibilities. Id. at 1108 (citing Felix v. Asai, 192 Cal.App.3d 926, 237 Cal.Rptr. 718, 722 (1987)).

         b. Wisner's Conduct

         Plaintiff claims that Wisner's tortious conduct was not far removed in time, distance, or purpose from his normal duties and thus, incidental to his employment at the VA. In his administrative claim, plaintiff states that he scheduled the October 2013 appointment because he needed to renew a prescription. According to plaintiff, Wisner performed a physical examination, in which Wisner asked plaintiff to remove his pants and lay on the table. Without gloves, Wisner placed one hand on plaintiff's inner thigh and used the other hand to massage plaintiff's testicles and penis. During the examination, Wisner stated “things are looking good down there” and also asked plaintiff about his sex life. After the physical exam, Wisner told plaintiff he wanted to give him a prostrate exam and to call his office to schedule an appointment. Plaintiff alleges that he had a similar experience with Wisner in November 2012 (and in his complaint, he alleges that Wisner's acts occurred in October of 2013 and earlier). Plaintiff argues that while Wisner's acts were improper, they were still in line with his duties he was hired to perform as a PA.

         Plaintiff references several of Wisner's admissions in his complaint. Wisner admitted to making inappropriate sexual comments to his patients. Wisner also admitted that he performed unnecessary testicular and genital examinations and unnecessary contact of his patients for no legitimate medical purpose.

         Still, at this stage, plaintiff has presented a plausible negligence claim that is supported by facts consistent with the allegations in the complaint. Arguably, Wisner was furthering the VA's interests in treating and examining plaintiff, even though it may have been done in excess. Some of Wisner's duties included performing physical examinations on patients. There is no dispute that performing improper or excessive examinations without gloves-to the extent that Wisner gained personal satisfaction from these examinations-was a deviation from his duties. But it is plausible that this deviation was not an entire departure from the scope of Wisner's employment and was within the parameters of the duties he was hired to perform. At this time, the court cannot resolve this question as a matter of law. Any improper examinations occurred during appointments when plaintiff sought medical treatment from the VA. And plaintiff does not allege that examinations occurred after business hours or outside of the VA's building.

         Moreover, full physical examinations (including examination of the VA patients' genitalia and prostates) are not necessarily unexpected. The failure to wear gloves and/or an excessive number of examinations might be improper, but this conduct in general is not unforeseeable or unexpected of a PA hired to treat VA patents. Likewise, obtaining personal information from a patient for diagnosis and treatment is expected and often necessary for effective ...


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