Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kuberski v. United States

United States District Court, D. Kansas

October 24, 2018

DUSTIN KUBERSKI and JESSICA KUBERSKI, Plaintiffs,
v.
UNITED STATES OF AMERICA and MARK WISNER, Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA, UNITED STATES DISTRICT JUDGE.

         Plaintiffs Dustin Kuberski and Jessica Kuberski 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 Dustin Kuberski 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. 11). 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 Dustin Kuberski 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 Dustin Kuberski. Wisner was a physician's assistant for the VA, and is a defendant in more than ninety 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, 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.

         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.

         Plaintiff Jessica Kuberski

         Defendant moves to dismiss the claims of plaintiff Jessica Kuberski because they are derivative of the claims of plaintiff Dustin Kuberski. Plaintiff Dustin Kuberski was the patient. Plaintiff Jessica Kuberski was merely present during some of the medical appointments.

         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). Plaintiff Jessica Kuberski is not a proper party to this action, and the court dismisses her claims.

         Because the court dismisses the claims of plaintiff Jessica Kuberski in their entirety, the references to “plaintiff” throughout the remainder of this order pertain to plaintiff Dustin Kuberski.

         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.

         Count II - Negligent Supervision, Hiring, and Retention

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.