United States District Court, D. Kansas
JOHN X. DOE and JANE X. DOE, Plaintiffs,
UNITED STATES OF AMERICA, ROBERT A. MCDONALD, and MARK WISNER, P.A. Defendants.
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
John X. Doe and Jane X. Doe (“John” and
“Jane, ” respectively) 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 improper and/or unnecessary physical examinations
of John and elicited unnecessary private information.
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 Motion to Dismiss. (Doc. 11.)
Defendants argue that plaintiffs' First Amended Complaint
(Doc. 10) 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 defendant McDonald
(Doc. 19, at 1 n.1) and plaintiffs' claims against him
a veteran who sought treatment at the Dwight D. Eisenhower VA
Medical Center (“VA”) located in Leavenworth,
Kansas. Jane is John's wife. Wisner treated and provided
medical care for John between 2013 and 2014. Wisner was a
physician's assistant (“PA”) with 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 was negligent when he violated
the standard of care by attempting to conduct an unnecessary
examination of John's prostate and conducting improper
and/or unnecessary examinations of John's genitals
without gloves during appointments. They claim that Wisner
failed to recognize his own impairment and refer John to
another practitioner. Plaintiffs further allege that Wisner
used his position to elicit unnecessary private information
John and was negligent when he prescribed medication to John
that was unnecessary or in improper dosages. 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 failing to meet the standard of
care by making inappropriate sexual comments to his patients,
overprescribing medication, and performing unnecessary
testicular and genital exams and other unnecessary contact of
his patients for no legitimate medical purpose.
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 plaintiffs
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 plaintiffs and other patients.
claim that Wisner was arrested on June 25, 1987, in San
Bernardino, California for “Disorderly Conduct: Solicit
Lewd Act” and this information was available through
the National Crime Information Center. Plaintiffs allege that
Wisner was accused of sexual assault in 2012 while employed
at the VA. Plaintiffs list other incidents where Wisner was
reported for misconduct and misprescription of medications.
Plaintiffs allege that defendant knew or should have known
that Wisner was unable to provide competent medical care to
John. 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 the
Physician Assistant Licensure Act (“PALA”),
K.S.A. § 65-2801, et seq. Plaintiffs allege 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 bring claims for negligent infliction of emotional
distress, outrage, battery, and invasion of privacy -
intrusion upon seclusion against all defendants. Jane brings
a consortium claim and alleges that as a result of John's
injuries, she has lost the society, conjugal fellowship,
love, affection, consortium, and companionship of her
pursuant to Federal Rule of Civil Procedure 12(b)(1) is
appropriate when the court lacks subject matter jurisdiction
over a claim. Plaintiffs claim that subject matter
jurisdiction exists and have 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 plaintiffs' 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 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).
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
Plaintiffs claim 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. John
alleges that he was Wisner's patient from 2013 to 2014.
During his appointments, plaintiffs allege that Wisner would
lock the door, ask John about sex, and perform physical
examinations without gloves. John states that he never saw
Wisner wash his hands. During these examinations, John claims
that Wisner placed one hand on his inner thigh and used the
other hand to massage John's testicles and penis.
According to plaintiffs, Wisner once felt a clamp on
John's scrotum. John explained that it was from a
vasectomy, but Wisner continued massaging and responded that
it could be shrapnel requiring further examination. Wisner
would make statements like “things are looking good
down there” and “you have nice calves.”
Wisner repeatedly told John that he needed a prostate exam
until John informed Wisner that he had recently had a
colonoscopy. Plaintiffs further allege that Wisner asked
inappropriate questions about John's sex life, and also
asked Jane questions about her sex life.
reference 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
argue that while Wisner's acts were improper, they were
still in line with his duties he was hired to perform as a
PA. At this stage, plaintiffs have 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
John, even though it may have been done in excess and
included inappropriate comments. Some of Wisner's duties
included prescribing medication and performing physical
examinations on patients. There is no dispute that
misprescription of medication and 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 John sought medical treatment from the VA. And
plaintiffs do 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) 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 treatment. ...