United States District Court, D. Kansas
JOHN DOE D. E., Plaintiff,
UNITED STATES OF AMERICA, ROBERT A. MCDONALD, and MARK WISNER, P.A. Defendants.
MEMORANDUM AND ORDER
MURGUIA United States District Judge
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.
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.
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.
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.
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.
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.
also brings claims for negligent infliction of emotional
distress, outrage, battery, and invasion of privacy -
intrusion upon seclusion against all defendants.
Legal Standards A. Rule 12(b)(1)
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 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 job
responsibilities. Id. at 1108 (citing Felix v.
Asai, 192 Cal.App.3d 926, 237 Cal.Rptr. 718, 722
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.
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
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.
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 ...