United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
John Doe BM brings 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, made inappropriate sexual
comments, and mis-prescribed or over-prescribed medication.
Plaintiff also alleges state law claims. This matter is
before the court on defendant United States of America's
Motion to Dismiss (Doc. 3). Defendant argues that
plaintiff's 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
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. 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: Battery;
and (4) Count IV: 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,
the parties address the same arguments in this case as they
have in many previous cases, here, the court need only
address one: the statute of repose, which applies to all
counts against defendant.
claims that all 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, raising four arguments in opposition to
defendant's position: (1) Section 60-513(c) does not
apply to plaintiff's claims because Wisner was not a
“health care provider”; (2) In any event, §
60-513(c) does not apply to plaintiff's claims for
battery and invasion of privacy; (3) The FTCA's
administrative process tolls the statute of repose; and (4)
Equitable estoppel tolls the statute of repose.
court has addressed all four of these arguments a number of
times. First, Wisner was a health care provider, making
§ 60-513(c) applicable. See, e.g., Doe BF
v. United States, No. 17-2088, 2017 WL 4355577, at *2
(D. Kan. Oct. 2, 2017); Almquist v. United States,
No. 17-2108, 2017 WL 4269902, at *2 (D. Kan. Sept. 25, 2017).
Second, § 60-513(c) applies to all of plaintiff's
claims, including battery, outrage, and invasion of privacy.
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,
equitable estoppel does not further toll the statute of
repose. See, e.g., Doe BF, 2017 WL 4355577,
at *3-*4; Almquist, 2017 WL 4269902, at *3-*4.
Plaintiff urges the court to reconsider three of these four
rulings (in particular, the ruling about whether §
60-513(c) is applicable), but the court declines to do so.
case, the impact of these rulings is that all of
plaintiff's claims are barred by the statute of repose.
In his complaint, plaintiff alleges that he saw Wisner
“on multiple occasions from 2010 and 2012.”
Taking these allegations as true, all of plaintiff's
claims must have happened before Setpember 12, 2013, which
was four years before plaintiff filed an administrative
claim. The claims are therefore barred, and the court
dismisses plaintiff's claims against defendant United
States of America.
IS THEREFORE ORDERED that defendant's motion to
dismiss (Doc. 3) is granted in full. Plaintiff's claims
against defendant United States of America are dismissed. At
this time, however, ...