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Doe v. United States

United States District Court, D. Kansas

January 6, 2020

JOHN DOE A.L., Plaintiff,
v.
UNITED STATES OF AMERICA and MARK WISNER, Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA, UNITED STATES DISTRICT JUDGE

         This 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.

         The 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).

         This 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.

         I. Factual Background[1]

         The 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.

         According 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.

         The 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:[2]

• 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 curiosity.
• For his own pleasure, Wisner performed genital exams on patients when they were not medically indicated or necessary.
• 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 exams.

         Wisner 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 practice.

         As necessary, the court will incorporate additional uncontroverted facts ...


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