United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
John Doe PR 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 elicited unnecessary private
information. Plaintiff also alleges several state law claims.
This matter is before the court on defendant United States of
America’s Motion to Dismiss (Doc. 7). Defendant argues
that plaintiff’s 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.
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: Negligence – Medical Malpractice; (2) Count
II: Negligent Supervision, Retention and Hiring; (3) Count
III: Battery; and (4) Count IV: Invasion of Privacy.
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 case.
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 claim for
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 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
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 saw
Wisner “on multiple occasions from 2010 through early
2014.” Taking these allegations as true, some of
plaintiff’s claims likely happened before April 7,
2013, 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.,
Anasazi, 2017 WL 2264441, at *8–*9; Doe D.
E., 2017 WL 1908591, at *8. This outcome remains
appropriate despite plaintiff’s argument that the VA
had mandatory duties under the ...