United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, United States District Judge
Christopher Anasazi (“Anasazi”) and John Doe A
(“Doe”) bring 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 on Doe and elicited unnecessary private
information from and made offensive comments to both
plaintiffs. Plaintiffs claim that the court has supplemental
jurisdiction over their state claims under 28 U.S.C. §
1367(a). This matter is before the court on defendants United
States of America and McDonald's Amended Motion to
Dismiss. (Doc. 40.) Defendants argue that plaintiffs'
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.
Plaintiffs do not oppose defendants' request to dismiss
McDonald (Doc. 41, at 1 n.1) and plaintiffs' claims
against him are dismissed.
a disabled veteran who sought medical care and treatment at
the Dwight D. Eisenhower VA Medical Center (“VA”)
located in Leavenworth, Kansas. Anasazi-Doe's friend
and/or caregiver-accompanied Doe to his appointment on May
15, 2014. The VA assigned Wisner as Doe's primary care
physician. Wisner was a physician's assistant
(“PA”) for the VA, but represented himself to the
public as a medical doctor.
Count I, plaintiffs claim that Wisner practiced and
prescribed medicine, including the performance of physical
examinations, under the close supervision of a VA physician.
Plaintiffs allege that Wisner conducted an inappropriate
physical examination of Doe, made improper sexual comments,
and elicited unnecessary personal information.
claims that Wisner was negligent when he violated the
standard of care by conducting improper and/or unnecessary
examinations of his genitalia and by failing to wear gloves
during these examinations. Doe claims that Wisner failed to
recognize his own impairment and refer him to another
practitioner. Anasazi alleges that Wisner sexually harassed
him during Doe's appointment. And plaintiffs claim 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.
state 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.
bring claims of negligent supervision, retention, and hiring
against defendant in Count II. Plaintiffs allege that
defendant-via the VA-violated its duty to exercise reasonable
care when it employed, supervised, and retained Wisner. They
state that defendant knew or should have known that Wisner
was unable to provide competent medical care to Doe and that
Wisner victimized and was dangerous to other patients.
Plaintiffs also claim that defendant possessed reason to
believe that employment of Wisner would result in undue risk
of harm to plaintiff and other patients. Plaintiffs allege
that defendant had knowledge of Wisner's prior
misconduct, impairment, and propensities to provide improper
medical care and violate patient boundaries, but failed to
take appropriate action to correct his misconduct.
claim that Wisner had been convicted of a sex-related crime
that could have been discovered by the VA had it
appropriately investigated Wisner's record. Plaintiffs
list incidents where Wisner was reported for misconduct and
misprescription of medications. Plaintiffs also claim 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. Plaintiffs allege that defendant
failed to perform actions required by VHA Handbook 1100.19;
and VHA Directive 2012-030.
also claim negligent infliction of emotional distress,
outrage, battery, and invasion of privacy - intrusion upon
seclusion against all defendants.
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 sexual harassment
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).
claim 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
claim 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
Wisner's Conduct with Respect to Doe
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, Doe states that Wisner began the
appointment with a standard introduction and obtained a
verbal history from Doe. Wisner outlined a treatment plan.
Then Wisner elicited personal ...