United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
Thomas Martin and Ariela Martin 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 Thomas Martin
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.
Thomas Martin 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 Thomas Martin. Wisner was a physician's
assistant for the VA, and is a defendant in more than ninety
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: Negligent
Infliction of Emotional Distress; (4) Count IV: Outrage; (5)
Count V: Battery; and (6) Count VI: 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,
moves to dismiss the claims of plaintiff Ariela Martin
because they are derivative of the claims of plaintiff Thomas
Martin. Plaintiff Thomas Martin was the patient. Plaintiff
Ariela Martin was merely present during some of the medical
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
Ariela Martin is not a proper party to this action, and the
court dismisses her claims.
the court dismisses the claims of plaintiff Ariela Martin 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).
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
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 ...