United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge.
Ernie Kendall and Cindy Kendall 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 Ernie Kendall
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. 14). 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.
Ernie Kendall 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 Ernie. Plaintiff Cindy Kendall is Ernie's wife.
Wisner was a physician's assistant (“PA”) for
the VA, and is a defendant in more than eighty 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 D.
E. 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 D. E., 2017 WL 1908591, at
moves to dismiss the claims of plaintiff Cindy Kendall
because they are derivative of the claims of plaintiff Ernie
Kendall. Plaintiff Ernie Kendall was the patient. Plaintiff
Cindy Kendall was merely present during some of the medical
appointments. Plaintiffs did not respond this argument.
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).
witnessing conduct (at least in the way plaintiff Cindy
Kendall alleges) does not state a claim for negligent
infliction of emotional distress, outrage, malpractice,
negligent supervision, or invasion of privacy. Plaintiff
Cindy Kendall was not seeking medical care and was not a
patient of Wisner's. She does not allege physical or
verbal interaction with Wisner. The only damages identified
in the administrative claim are derivative of those allegedly
suffered by her husband. And plaintiff Cindy Kendall does not
identify any directives or policies mandating particular
action with respect to supervising a provider's actions
with respect to non-patients. Plaintiff Cindy Kendall is not
a proper party to this action, and the court dismisses her
the court dismisses the claims of plaintiff Cindy Kendall in
their entirety, the references to “plaintiff”
throughout the remainder of this order pertain to plaintiff
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).
defendant acknowledges, 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.