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 A.L.-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
claims remaining in this case are (1) Count I: Medical
Malpractice - Negligence; (2) Count II: Negligent
Supervision; and (3) Count III: Outrage/Intentional
Infliction of Emotional Distress. Like other veterans treated
by Wisner, plaintiff brings his claims against defendant
United States pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671
and 38 U.S.C. § 7316(a), (f).
matter is before the court on defendant United States of
America's Motion for Summary Judgment (Doc. 51).
Defendant asks the court to grant summary judgment on several
grounds: (1) Wisner was not acting within the scope of his
employment; (2) because Wisner's actions were
intentional, they are barred by the FTCA; (3) plaintiff did
not administratively exhaust his negligent supervision claim;
and (4) plaintiff's negligent supervision claim is barred
by the FTCA's discretionary function exception. For the
following reasons, the court denies the motion in part and
grants it in part.
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.
to medical records, plaintiff saw Wisner on multiple
occasions between July 13, 2012 and February 25, 2014.
Plaintiff testified at his deposition that Wisner conducted a
genital exam on him at every visit. He said that Wisner did
things of a “sexual nature” to him that made him
feel uncomfortable. In 2015, plaintiff also told Special
Agent Kerry Baker with the VA Office of Inspector General
(“OIG”) that he was so uncomfortable with
Wisner's demeanor that he sometimes missed appointments.
record contains an 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 Sheriff's Office. The memorandum does not mention
plaintiff's 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 multiple genital
practiced under the supervision of various physicians. Dr.
Daniel Cline was one of the collaborating physicians at the
VA. Under VHA Directive 1063, Dr. Cline was responsible for
providing clinical oversight, consultation, and patient care
management assistance to Wisner. Dr. Cline and other
collaborating physicians were responsible under the same
directive for monitoring Wisner's clinical activities to
ensure they were within the authorized scope of practice. And
the Chief of Service at the VA was responsible for taking
action to correct any discovered deficiencies in Wisner's
necessary, the court will incorporate additional
uncontroverted facts ...