United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
John Doe KS and Jane Doe KA bring 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 Wisner conducted improper and/or
unnecessary physical examinations of plaintiff KS and
elicited unnecessary private information. Plaintiffs also
allege several state law claims. This matter is before the
court on defendant United States of America's Motion to
Dismiss (Doc. 4). Defendant argues that plaintiffs'
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.
Factual Background and Legal Standards
KS 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 KS. Plaintiff KA is plaintiff KS's wife.
Wisner was a physician's assistant (“PA”) for
the VA, and is a defendant in more than seventy pending civil
suits before this court.
claims in this case are virtually identical to those in a
number of other cases this court has considered. See,
e.g., Anasazi v. United States, No. 16-2227-CM,
2017 WL 2264441, at *1-*2 (D. Kan. May 23, 2017); Doe v.
United States, No. 16-2162-CM, 2017 WL 1908591, at *1-*2
(D. Kan. May 10, 2017). The court will not repeat the details
of them here. Highly summarized, they are: (1) Count I:
Negligence - Medical Malpractice; (2) Count II: Negligent
Supervision, Retention and Hiring; (3) Count III: Negligent
Infliction of Emotional Distress; (4) Count IV: Outrage; (5)
Count V: Battery; and (6) Count VI: Invasion of Privacy -
Intrusion Upon Seclusion.
the court has set forth the governing legal standards in a
number of other cases involving the same parties and claims.
The court does not repeat them here, but applies them as it
has in the past. See, e.g., Anasazi, 2017
WL 2264441, at *2; Doe, 2017 WL 1908591, at *2.
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).
court has repeatedly held that plaintiffs with similar
allegations to those here have sufficiently alleged that
Wisner's conduct was within the scope of his employment.
See, e.g., Anasazi, 2017 WL 2264441, at *4;
Doe, 2017 WL 1908591, at *4. The court also has held
that plaintiffs with similar allegations have presented
plausible claims that the VA Immunity Statute applies,
allowing them to pursue remedies under the FTCA for claims
arising out of a battery. See, e.g.,
Anasazi, 2017 WL 2264441, at *5; Doe, 2017
WL 1908591, at *4.
does not rehash the same arguments that it made in previous
cases about scope of employment and the VA Immunity Statute.
But defendant does argue that the allegations in
plaintiffs' complaint are more in the nature of
intentional sexual assault than negligence. Defendant claims
that plaintiffs' allegations are inconsistent with the
position that Wisner engaged in conduct that was a slight
deviation from his scope of employment, and asks the court to
revisit its prior findings. The court addresses this, along
with the other new arguments of defendant, below.
first moves to dismiss the claims of plaintiff KA because
they are derivative of the claims of plaintiff KS. Plaintiff
KS was the patient. Plaintiff KA was merely present during
some of the medical appointments.
does not recognize a separate cause of action for spousal
loss of consortium due to injuries to the other spouse.
Sayre v. City of Lawrence, No. 13-2291-RDR, 2013 WL
4482703, at *2 (D. Kan. Aug. 21, 2013) (citation omitted).
Instead, “the right to recover for loss of consortium
lies with the spouse who files an action for personal
injuries, not the spouse who actually suffers the loss of
consortium.” Stucky v. Health Care Prod.,
Inc., 794 F.Supp. 1069, 1070 (D. Kan. 1992).
KA claims that she is not only bringing claims for loss of
consortium-she is also bringing causes of action for her own
damages. She claims she is entitled to her own damages
because she witnessed ...