United States District Court, D. Kansas
MEMORANDUM AND ORDER
CARLOS
MURGUIA UNITED STATES DISTRICT JUDGE.
Plaintiff
John Doe WB 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 over-prescribed and
mis-prescribed medication. Plaintiff also alleges several
state law claims. This matter is before the court on
defendant United States of America's Motion to Dismiss
(Doc. 3). 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.
Plaintiff
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.
The
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; (3) Count III: Battery; and (4) Count IV:
Invasion of Privacy - Intrusion Upon Seclusion.
Likewise,
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,
at *2.
Scope
of Employment
Under
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).
This
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.
Statute
of Repose
Defendant
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.
The
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 *3-*4.
In this
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 numerous occasions from before 2010 up until
April of 2014.” Taking these allegations as true, some
of plaintiff's claims likely happened before January 12,
2013, which was four years before plaintiff filed an
administrative claim. Any such claims are therefore barred by
the statute of repose.
Count
II - Negligent Supervision
As for
the negligent supervision claim, the court has allowed this
claim to proceed in the past. See, e.g., Doe
BF, 2017 WL 4355577, at *6; Almquist, 2017 WL
4269902, at *6; Anasazi, 2017 WL 2264441, at *7;
Doe D. E., 2017 WL 1908591, at *6. For the reasons
the court has set forth in other related opinions,
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