United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
John Doe W.D. brings 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 and made inappropriate sexual
comments. Plaintiff also alleges state law claims for battery
and outrage/intentional infliction of emotional distress.
This matter is before the court on defendant United States of
America's Motion to Dismiss (Doc. 5). Defendant argues
that plaintiff's complaint should be dismissed for lack
of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). For the reasons set forth below, the
court grants defendant's motion in part and denies it in
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 for the VA,
and is a defendant in more than eighty pending civil suits
before this court.
claims in this case are similar to claims in a number of
other cases this court has considered. See, e.g.,
Anasazi v. United States, No. 16-2227, 2017 WL
2264441, at *1-*2 (D. Kan. May 23, 2017); Doe D. E. v.
United States, No. 16-2162, 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:
Medical Malpractice - Negligence; (2) Count II: Negligent
Supervision, Retention, and Hiring; (3) Count III:
Outrage/Intentional Infliction of Emotional Distress, and (4)
Count IV: Battery.
the court has set forth the governing legal standards in a
number of other cases involving the same parties and similar
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 D. E., 2017 WL 1908591,
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., Doe BF v. United States, No.
17-2088, 2017 WL 4355577, at *4-*5 (D. Kan. Oct. 2, 2017);
Almquist v. United States, No. 17-2108, 2017 WL
4269902, at *4-*5 (D. Kan. Sept. 25, 2017); Anasazi,
2017 WL 2264441, at *4; Doe D. E., 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., Doe BF, 2017 WL 4355577, at *5;
Almquist, 2017 WL 4269902, at *5; Anasazi,
2017 WL 2264441, at *5; Doe D. E., 2017 WL 1908591,
at *4. The court likewise allows plaintiff to proceed in this
claims that at least some of plaintiff's claims are
barred by Kansas's four-year statute of repose.
See Kan. Stat. Ann. § 60-513(c) (stating that,
with respect to a “cause of action arising out of the
rendering of or the failure to render professional services
by a health care provider, ” “in no event shall
such an action be commenced more than four years beyond the
time of the act giving rise to the cause of action”).
Plaintiff disagrees, raising four arguments in opposition to
defendant's position: (1) Section 60-513(c) does not
apply to plaintiff's claims because Wisner was not a
“health care provider”; (2) In any event, §
60-513(c) does not apply to plaintiff's claims for
outrage or battery; (3) The FTCA's administrative process
tolls the statute of repose; and (4) Equitable estoppel tolls
the statute of repose.
court has addressed all four of these arguments a number of
times. First, Wisner was a health care provider, making
§ 60-513(c) applicable. See, e.g., Doe
BF, 2017 WL 4355577, at *2; Almquist, 2017 WL
4269902, at *2. Second, § 60-513(c) applies to all of
plaintiff's claims, including outrage and battery.
See, e.g., Doe BF, 2017 WL 4355577, at *2;
Almquist, 2017 WL 4269902, at *2. Third, the FTCA
administrative process tolls the statute of repose. See,
e.g., Doe BF, 2017 WL 4355577, at *3;
Almquist, 2017 WL 4269902, at *3. And fourth,
equitable estoppel does not further toll the statute of
repose. See, e.g., Doe BF, 2017 WL 4355577,
at **3-*4; Almquist, 2017 WL 4269902, at *3-*4.
case, the impact of these rulings is that some of
plaintiff's claims may be barred by the statute of
repose. In his complaint, plaintiff alleges that he was
Wisner's patient and visited the clinic on a number of
dates between September 2010 and June 2013. Taking these
allegations as true, some of plaintiff's claims may have
happened before May 23, 2012, which was four years before
plaintiff filed an administrative claim. Any such claims are
therefore barred by the statute of repose.
II - Negligent Supervision, Hiring, and
court has previously dismissed other plaintiffs' claims
for negligent hiring and retention based on the discretionary
function exception to the FTCA. See, e.g., Doe
BF, 2017 WL 4355577, at *5-*6; Almquist, 2017
WL 4269902, at *5-*6; Anasazi, 2017 WL 2264441, at
*8-*9; Doe D. E., 2017 WL 1908591, at *8. This
outcome remains appropriate ...