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Kendall v. United States

United States District Court, D. Kansas

April 11, 2018

ERNIE KENDALL and CINDY KENDALL, Plaintiffs,
v.
UNITED STATES OF AMERICA and MARK WISNER, Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge.

         Plaintiffs 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.

         Plaintiff 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.

         The 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.

         Likewise, 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 *2.

         Plaintiff Cindy Kendall

         Defendant 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.

         Kansas 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).

         Merely 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 claims.

         Because 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 Ernie Kendall.

         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).

         As 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.

         Statute ...


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