United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
Richard Mantick and Jessica Mantick 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 Richard
Mantick 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. 7). 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.
Richard Mantick 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 Richard Mantick. 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 Jessica Mantick
because they are derivative of the claims of plaintiff
Richard Mantick. Plaintiff Richard Mantick was the patient.
Plaintiff Jessica Mantick was merely present during some of
the medical appointments.
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 Mantick is not a proper party to this action, and the
court dismisses her claims. Because the court dismisses the
claims of plaintiff Jessica Mantick in their entirety, the
references to “plaintiff” throughout the
remainder of this order pertain to plaintiff Richard Mantick.
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
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, incorporating arguments made in other
cases by reference.
court makes the same rulings here as it has in other cases.
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,