United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE
case is one of nearly one hundred cases brought by veterans
against the United States of America and Mark Wisner. The
veterans involved-including plaintiff John Doe S.B.-sought
treatment at the Dwight D. Eisenhower VA Medical Center
(“VA”) located in Leavenworth, Kansas. Wisner was
a physician's assistant for the VA. In that capacity,
Wisner treated and provided medical care for veterans,
including plaintiff. But Wisner did not only provide medical
care; on countless occasions, he also conducted improper and
unnecessary physical examinations of the veterans'
genitals and recta and made inappropriate sexual comments
during medical appointments. Since the filing of these civil
cases, Wisner has been convicted in the Leavenworth County
District Court of criminal sodomy, aggravated sexual battery,
and sexual battery. He is currently serving a sentence of
over fifteen years in prison.
court has already reviewed the allegations in this case (and
all other connected cases) on a motion to dismiss filed by
defendant United States. After considering that motion, the
only claim remaining in this case is for medical malpractice
- negligence. Like other veterans treated by Wisner,
plaintiff brings his claim against defendant United States
pursuant to the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346(b), 2671 and 38 U.S.C. §
matter is before the court on defendant United States of
America's Motion for Summary Judgment (Doc. 29).
Defendant asks the court to grant summary judgment on two
grounds: (1) Wisner was not acting within the scope of his
employment; and (2) because Wisner's actions were
intentional, they are barred by the FTCA. For the following
reasons, the court denies the motion.
uncontroverted facts in this case are disheartening.
Unfortunately, they are nearly the same facts as those in the
other related civil suits before this court. Highly
summarized, Wisner was employed by the VA from September 28,
2008 through June 28, 2014. During that time, he saw between
750 to 1, 000 patients. The VA employed Wisner, in part, to
conduct physical examinations of patients, which may have
involved sensitive, intimate, or uncomfortable matters.
Wisner conducted medically-documented examinations of
plaintiff in an exam room at the Leavenworth VA facility,
while the facility was open and operating. Wisner's
medically-documented genital exams were part of his overall
physical examinations. At least some portions of the medical
care that Wisner provided plaintiff was for a valid medical
purpose-to provide diagnostic care. Other portions were not
for valid medical purposes.
claims that during a medical examination on September 19,
2013, Wisner inserted his fingers into plaintiff's rectum
without wearing gloves. Wisner did not explain to plaintiff
why he did this. Plaintiff testified at his deposition that
“[a]t the time - I can honestly tell you that at the
time that this exam happened I knew there was something weird
about the exam, that something was off and not right.”
record contains a VA Office of Inspector General
(“OIG”) memorandum memorializing a January 23,
2015 interview with Wisner, conducted by OIG Special Agent
Baker and Lt. Detective Joshua Patzwald of the Leavenworth
County Sheriffs Office. The memorandum does not mention
plaintiffs name; it contains primarily general statements. It
was also written before plaintiff filed an administrative
claim. The memorandum reflects the following
“admissions” by Wisner:
• Wisner crossed the professional line in providing
purported genital exams to patients.
• Wisner knew that what he was doing to patients was
wrong and that he lacked self-control.
• Wisner provided genital exams to satisfy his own
• For his own pleasure, Wisner performed genital exams
on patients when they were not medically indicated or
• Wisner chose his victims, who were attractive and had
a similar body type.
• To avoid getting caught, Wisner falsified medical
records, including failing to document ...