McIntosh v. United States of America et al

Filing 33

MEMORANDUM AND ORDER denying 9 Motion to Dismiss as to Count I and II. IT IS FURTHER ORDERED that plaintiff has voluntarily abandoned Count III, and thatclaim is no longer a part of this case. Signed by District Judge Carlos Murguia on 2/15/2017. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KYLE MCINTOSH,
Plaintiff,
v.
UNITED STATES OF AMERICA and
MARK WISNER, P.A.
Defendants.

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Case No. 16-2218

MEMORANDUM AND ORDER
Plaintiff Kyle McIntosh 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, alleging that
Wisner subjected him to inappropriate sexual comments, improper physical examinations, and
solicitation of sexual acts. Plaintiff claims that the court has supplemental jurisdiction over his state
claims against Wisner under 28 U.S.C. § 1367(a). This matter is before the court on defendant United
States’s Motion to Dismiss. (Doc. 9.) Defendant argues that plaintiff’s complaint should be dismissed
for lack of subject matter jurisdiction, insufficient service of process, and because it fails to state a
claim under Federal Rules of Civil Procedure 12(b)(1), (5), and (6). Plaintiff cured service and
properly served defendant as required by Fed. R. Civ. P. 4(i). (Docs. 22 and 23.) For the reasons set
forth below, the court denies defendant’s motion.
I.

Factual Background
Plaintiff is a disabled veteran who sought treatment at the Dwight D. Eisenhower VA Medical

Center (“VA”) located in Leavenworth, Kansas. Wisner provided medical care for plaintiff. Wisner
was a physician’s assistant (“PA”) for the VA, but represented himself to plaintiff as a medical doctor.

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Plaintiff alleges that Wisner conducted inappropriate physical examinations, made improper
sexual comments and solicited sexual acts from him. He claims that Wisner was negligent when he
violated the standard of care by conducting improper and/or unnecessary examinations of plaintiff’s
genitalia and by failing to wear gloves during these examinations. Plaintiff claims that Wisner failed
to recognize his own impairment and refer plaintiff to another practitioner. Plaintiff also claims that
Wisner was acting within the scope of his employment at the time he committed these acts—making
defendant vicariously liable for Wisner’s misconduct.
Plaintiff states that in February 2015, Wisner executed a Consent Order for Surrender, which
was filed by the Kansas Board of Healing Arts (“KBOHA”). Wisner admitted to using his position as
a PA to commit sexual batteries against VA patients. In another letter, Wisner admitted that he was an
impaired practitioner not capable of patient care and that he committed violations under Kan. Stat.
Ann. § 65-28a05(a) and other governing Kansas statutes and regulations.
Plaintiff also brings claims of negligent supervision and/or retention against defendant. Plaintiff
alleges that defendant—via the VA—violated its duty to exercise reasonable care when it supervised
and retained Wisner. He states that defendant knew or should have known that Wisner was unable to
provide competent medical care to plaintiff and that Wisner victimized and was dangerous to other
patients. Plaintiff also alleges that VA supervisors failed to monitor Wisner’s clinical activities to
ensure that they were within the authorized scope of practice and medically appropriate as required by
VHA Directive 1063 and/or the Physician Assistant Licensure Act (“PALA”), Kan. Stat. Ann. § 6528a01. Plaintiff claims that the VA had knowledge of Wisner’s misconduct, but failed to take
appropriate action to correct his misconduct.
II.

Legal Standards

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A.

Rule 12(b)(1)

Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate when the court
lacks subject matter jurisdiction over a claim. Plaintiff claims that subject matter jurisdiction exists
and has the burden of establishing it. Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189
(10th Cir. 2008). Because federal courts are courts of limited jurisdiction, there is a strong
presumption against federal jurisdiction. Sobel v. United States, 571 F. Supp. 2d 1222, 1226 (D. Kan.
2008).
Motions for lack of subject matter jurisdiction generally take one of two forms: (1) a facial
attack on the sufficiency of the complaint’s jurisdictional allegations; or (2) a challenge to the actual
facts upon which subject matter jurisdiction is based. Holt v. United States, 46 F.3d 1000, 1002–03
(10th Cir. 1995). For a facial challenge, the court accepts the plaintiff’s factual allegations regarding
jurisdiction as true. Id. at 1002. But for a factual attack, the court does not presume that the plaintiff’s
allegations are true. Id. at 1003. Rather, “[a] court has wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule
12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the
motion to a Rule 56 motion.” Id.
B.

Rule 12(b)(6)

To the extent this court has subject matter jurisdiction, the court must determine whether
plaintiff’s action is subject to dismissal because it fails to state a claim upon which relief could be
granted. The court grants a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) only
when the factual allegations fail to “state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). Although the factual allegations need not be detailed, the
claims must set forth entitlement to relief “through more than labels, conclusions and a formulaic

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recitation of the elements of a cause of action.” In re Motor Fuel Temperature Sales Practices Litig.,
534 F. Supp. 2d 1214, 1216 (D. Kan. 2008). The allegations must contain facts sufficient to state a
claim that is plausible—not merely conceivable. Id. “All well-pleaded facts, as distinguished from
conclusory allegations, must be taken as true.” Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984);
see also Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). The court construes any reasonable inferences
from these facts in favor of the plaintiff. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006).
III.

Discussion
Under 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). An action under the FTCA is the exclusive remedy for a
plaintiff claiming personal injuries arising out of the negligent conduct of a federal employee, 28
U.S.C. § 2679(b)(1), and federal courts have exclusive jurisdiction over such actions, 28 U.S.C. §
1346(b)(1).
A.

Medical Negligence Against Wisner
1.

Scope of Employment

Defendant characterizes Wisner’s conduct as “sexual misconduct.” Applying this
characterization, defendant argues that the court lacks jurisdiction because Wisner’s conduct was not
within the scope of his employment. Sexual battery and solicitation are not within the duties that a PA
is hired to perform, defendant argues, and did not further the VA’s business.

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Under the FTCA, the United States is liable only for tortious acts committed by employees
“acting within the scope of [their] office or employment.” 28 U.S.C. § 1346(b)(1). “Scope of
employment” is determined by the law of the place where the accident occurred. Fowler v. United
States, 647 F.3d 1232, 1237 (10th Cir. 2011); see also 28 U.S.C. § 1346(b)(1). In Kansas, an
employee acts within the scope of his employment when (1) he performs services for which he has
been employed, or (2) he does anything reasonably incidental to his employment. O’Shea v. Welch,
350 F.3d 1101, 1103 (10th Cir. 2003) (citing Pattern Instructions Kansas 3d 107.06; Williams v. Cmty.
Drive-In Theater, Inc., 520 P.2d 1296, 1301–02 (Kan. 1974)). The test is not whether the employer
expressly authorized or forbid the conduct. Id. Instead, the court asks whether the employer should
have fairly foreseen the conduct from the nature of the employment and the duties relating to it. Id.;
see also Commerce Bank of St. Joseph, N.A. v. State, 833 P.2d 996, 999 (Kan. 1992).
Plaintiff claims that scope of employment is a factual determination. Generally, this is correct,
but the court may resolve this question as a matter of law when only one reasonable conclusion can be
drawn from the evidence. See Wayman v. Accor N. Am., Inc., 251 P.3d 640, 646 (Kan. Ct. App. 2011)
(citing O’Shea, 350 F.3d 1101).
a.

Slight Deviation Analysis

Plaintiff claims that Wisner’s conduct was within the scope of his employment because it was a
“slight deviation” from his duties. In O’Shea v. Welch, the Tenth Circuit reviewed the Kansas jury
instruction on scope of employment, and determined that it is compatible with the slight deviation
analysis. O’Shea, 350 F.3d at 1106. “Application of the slight deviation analysis allows for more
flexibility and accuracy in the application of the law to each fact scenario. The Kansas pattern jury
instruction[] . . . does not express a bright-line rule but instead illustrates a type of slight deviation rule

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which requires a determination of what is reasonably incidental to employment and what conduct
should have been fairly foreseen.” Id.
Under the slight deviation analysis, an employee could pursue dual purpose ventures without
the conduct amounting to an entire departure from the scope of employment. Id. at 1107. “An
employee does not cease to be acting within the course of his employment because of an incidental
personal act, or by slight deflections for a personal or private purpose, if his main purpose is still to
carry on the business of his employer. Such deviations which do not amount to a turning aside
completely from the employer’s business, so as to be inconsistent with its pursuit, are often reasonably
expected and the employer’s assent may be fairly assumed.” Id.
The court reviews the following factors to determine whether an employee has engaged in a
slight or substantial deviation: (1) the employee’s intent; (2) the nature, time, and place of the
deviation; (3) the time consumed in the deviation; (4) the work for which the employee was hired; (5)
the incidental acts reasonably expected by the employer; and (6) the freedom allowed the employee in
performing his job responsibilities. Id. at 1108 (citing Felix v. Asai, 192 Cal. App. 3d 926, 237 Cal.
Rptr. 718, 722 (1987)).
b.

Wisner’s Conduct

Plaintiff claims that Wisner committed wrongful acts at virtually every patient encounter,
including plaintiff’s clinic visits on January 22, March 5, and April 2, 2014. Plaintiff, however, argues
that Wisner’s tortious conduct was not far removed in time, distance, or purpose from his normal
duties—thereby combining his own personal interest with the VA’s business interests.
Plaintiff references several of Wisner’s admissions to the KBOHA in his complaint. Wisner
admitted that he used his position as a PA to commit sexual batteries against his patients. Wisner
admitted to exploiting and making inappropriate sexual comments to his patients. Wisner also

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admitted that he performed unnecessary testicular and genital examinations and unnecessary contact of
his patients for no legitimate medical purpose.
Still, at this stage, plaintiff has presented a plausible negligence claim that is supported by facts
consistent with the allegations in the complaint. Arguably, Wisner was furthering the VA’s interests in
treating and examining plaintiff, even though it may have been done in excess. Some of Wisner’s
duties included performing physical examinations on patients. There is no dispute that performing
improper or excessive examinations without gloves—to the extent that Wisner gained personal
satisfaction from these examinations—was a deviation from his duties. But it is plausible that this
deviation was not an entire departure from the scope of Wisner’s employment and was within the
parameters of the duties he was hired to perform. At this time, the court cannot resolve this question as
a matter of law. The improper examinations occurred during appointments when plaintiff sought
medical treatment. And plaintiff does not allege that the examinations occurred after business hours or
outside of the VA’s building.
Moreover, full physical examinations (including examination of the VA patients’ genitalia and
prostates) are not necessarily unexpected. The failure to wear gloves and/or an excessive number of
examinations might be improper, but this conduct in general is not unforeseeable or unexpected of a
PA hired to treat VA patents. Likewise, obtaining personal information from a patient for diagnosis
and treatment is expected and often necessary for effective treatment. While Wisner’s conduct may
have been unprofessional or forbidden, that is not the test. See O’Shea, 350 F.3d at 1103.
c.

VA Immunity Statute for Intentional Torts

Defendant argues that 28 U.S.C. § 2680(h) bars plaintiff’s claims because the FTCA does not
apply to claims arising out of a battery. The FTCA exempts from the waiver of sovereign immunity
“[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution,

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abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28
U.S.C. § 2680(h). Under the FTCA’s general provisions, the United States remains immune for claims
arising out of these enumerated intentional torts. See id.
Another exception may apply in the instant case, however: the VA Immunity Statute. This law
allows for a remedy against the United States under the FTCA for damages arising from the provision
of medical services by health care employees of the VA under 38 U.S.C. § 7316(a)(1), (f). Ingram v.
Faruque, 728 F.3d 1239, 1245–46 (10th Cir. 2013) (citation omitted) (“‘[Section] 2680(h) does not bar
application of the FTCA to [intentional] tort claims arising out of the conduct of VA medical personnel
within the scope of’ 38 U.S.C. § 7316(f).”). Defendant argues again that this exception does not apply
because (1) Wisner was not acting within the scope of his employment when he sexually battered
plaintiff; (2) Wisner’s unnecessary or improper touching was not related or incidental to plaintiff’s
medical treatment; and (3) plaintiff characterized the conduct as sexual assaults and solicitation.
For the reasons previously set forth, defendant’s arguments fail at this stage of the litigation.
Plaintiff has presented a plausible claim that the VA Immunity Statute applies.
B.

Medical Negligence against Defendant

The court resolves questions of liability under the FTCA in accordance with the law of the state
where the alleged tortious activity took place. Franklin v. United States, 992 F.2d 1492, 1495 (10th
Cir. 1993). Kansas recognizes that negligent hiring, retention, or supervision is a separate and distinct
tort from respondeat superior. Miller v. Dillard’s Inc., 47 F. Supp. 2d 1294, 1299 (D. Kan. 1999)
(citing Marquis v. State Farm Fire & Cas. Co., 961 P.2d 1213, 1223 (Kan. 1998)). Liability for
negligent hiring, retention, and/or supervision is not predicated on a theory of vicarious liability, but
instead, liability runs directly from the employer to the person injured. Beam v. Concord Hosp., Inc.,
873 F. Supp. 491, 503 (D. Kan. 1994).

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“Negligent supervision includes not only the duty to supervise but also includes the duty to
control persons with whom the defendant has a special relationship including the defendant’s
employees or persons with dangerous propensities.” Marquis, 961 P.2d at 1223. To subject an
employer to liability on a negligent supervision claim,
plaintiff must show “some causal relationship between the dangerous propensity or
quality of the employee, of which the employer has or should have knowledge, and the
injuries suffered by the third person; the employer must, by virtue of knowledge of [its]
employee’s particular quality or propensity, have reason to believe that an undue risk of
harm exists to others as a result of the continued employment of that employee; and the
harm which results must be within the risk created by the known propensity . . . .”
Kan. State Bank & Trust Co. v. Specialized Transp., Servs., Inc., 819 P.2d 587, 596 (Kan. 1991)
(quoting Hollinger v. Stormont Hosp. & Training Sch. for Nurses, 578 P.2d 1121 (Kan. Ct. App.
1978)).
Plaintiff alleges that the VA knew or should have known that Wisner was dangerous and
further that he had a propensity to commit inappropriate acts against plaintiff and other VA patients.
Wisner was an employee of the VA and the VA was responsible for supervising him. Defendant,
however, argues that the discretionary function exception applies to bar the court’s jurisdiction over
plaintiff’s negligent supervision claim.
1.

Law: The Discretionary Function Exception

The discretionary function exception limits the FTCA’s waiver of sovereign immunity when
the governmental conduct at issue involves an element of judgment or choice. See 28 U.S.C. §
2680(a); Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1130 (10th Cir. 1999). “[T]he
discretionary function exception will not apply when a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow.” Franklin Sav. Corp., 180 F.3d at 1130
(quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). If the employee has no rightful option

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but to adhere to the directive, then sovereign immunity is waived and the court has jurisdiction to
consider the case. Id.
If a jurisdictional question is intertwined with the merits of the case, the court converts a Rule
12(b)(1) motion to one under Rule 12(b)(6) or Rule 56. See Franklin Sav. Corp., 180 F.3d at 1129–30.
Whether the discretionary function exception applies is such a question. Id.
To state a claim for relief under Rule 12(b)(6), plaintiff must allege facts that place his FTCA
claim facially outside the discretionary function exception. Id. at 1130. The court performs a twopronged analysis in determining whether defendant’s conduct falls within the exception. Id. First, the
court decides whether the governmental conduct “is a matter of choice for the acting employee,”
because without an element of judgment or choice, conduct cannot be discretionary. Id. Second, if the
conduct does involve judgment or choice, the court determines “whether that judgment is of the kind
that the discretionary function exception was designed to shield.” Id. Congress’s intent in maintaining
governmental immunity for discretionary functions was to “prevent judicial ‘second-guessing’ of
legislative and administrative decisions grounded in social, economic, and political policy through the
medium of an action in tort.” Id. (quoting Berkovitz at 536–37).
2.

Application: The Discretionary Function Exception

Plaintiff alleges that VA supervisors failed to monitor Wisner’s clinical activities to ensure that
they were within his authorized scope of practice and medically appropriate under both VHA Directive
1063 and/or PALA, Kan. Stat. Ann. § 65-28a01. To overcome the discretionary function exception,
however, the plaintiff must show that the federal employee’s discretion was limited by a federal
statute, regulation, or policy. Sydnes v. United States, 523 F.3d 1179, 1184 (10th Cir. 2008). The
court will not consider PALA.

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Plaintiff attached a copy of VHA Directive 1063 to his response and argues that it is the
applicable federal policy and guidelines for PAs employed by the VA. (Doc. 25-1.) VHA Directive
1063 mandates specific supervisory actions by Wisner’s supervising physician. At a minimum, VHA
Directive 1063 required Wisner’s supervising physician to be in weekly contact to discuss clinical
management issues and review five randomly selected patient encounter notes each quarter. Plaintiff
alleges that this was not done. At this stage of the litigation, plaintiff has sufficiently placed his claim
outside the discretionary function exception. The court retains jurisdiction over plaintiff’s medical
negligence claim against defendant for negligent supervision, Count I.
C.

Statute of Limitations

Plaintiff claims that Wisner committed wrongful acts at virtually every patient encounter,
including plaintiff’s clinic visits on January 22, March 5, and April 2, 2014. Plaintiff filed his
administrative claim on July 23, 2015. (Doc. 11, at 18–19.) While plaintiff’s specific 2014 visits are
within the FTCA’s two-year statute of limitations period, defendant argues that plaintiff’s claims
occurring before July 23, 2013, are time-barred.
The FTCA provides that a tort claim against the United States “shall be forever barred” unless
it is presented to the “appropriate Federal agency within two years after such claim accrues” and then
brought to federal court “within six months” after the agency acts on the claim. 28 U.S.C. § 2401(b);
United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1629 (2015). In Kwai Fun Wong, the United States
Supreme Court resolved a split among the circuits and held that the time limitations contained in §
2401(b) are not jurisdictional. Id. at 1632–33. “The time limits in the FTCA are just time limits,
nothing more.” Id. at 1633. Taking into account Kwai Fun Wong’s holding, other district courts have
determined that the plaintiff’s failure to comply with the FTCA’s statute of limitations is an affirmative
defense, which the defendant has the burden of establishing. See, e.g., Saofaigaalii v. United States,

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No. 14-00455 SOM/KSC, 2016 WL 3527095, at *6 (D. Haw. June 23, 2016); Crowder v. Hansen, No.
15-CV-3216 (MJD/HB), 2016 WL 4870621, at *7 (D. Minn. July 29, 2016). Because the issue is
being presented on a motion to dismiss under Rules 12(b)(1) and (6), the defense must appear on the
face of the complaint. See Richmond, Fredericksburg & Potomac R. Co. v. Forst, 4 F.3d 244, 250 (4th
Cir. 1993) (“A motion under Rule 12(b)(6) is intended to test the legal adequacy of the complaint, and
not to address the merits of any affirmative defenses. In the limited circumstances where the
allegations of the complaint give rise to an affirmative defense, the defense may be raised under Rule
12(b)(6), but only if it clearly appears on the face of the complaint.”).
“The general accrual rule for FTCA claims is the “injury-occurrence rule,” where the tort
claim accrues on the date of injury.” Bayless v. United States, 767 F.3d 958, 964 (10th Cir. 2014).
The “discovery rule” is an exception and applies to “‘protect plaintiffs who are blamelessly unaware of
their claim because the injury has not yet manifested itself or because the facts establishing a causal
link between the injury and the medical malpractice are in the control of the tortfeasor or otherwise not
evident.’” Id. (quoting Diaz v. United States, 165 F.3d 1337, 1339 (11th Cir. 1999)). In cases
applying the discovery rule, the date of accrual is when a reasonably diligent plaintiff knows or should
have known of both the existence of and cause of the injury. Id.
Defendant argues that the discovery rule is inapplicable to toll the statute of limitations because
plaintiff could not have possibly believed that Wisner’s actions were part of normal medical care.
According to defendant, plaintiff reasonably should have known of his injury at the time of the
improper examinations and questioning. Defendant also argues that plaintiff does not indicate what
information was provided by the VA alerting him to the injury.
At this stage, the court finds that defendant has not met its burden. Defendant’s claim that
plaintiff could not have believed that he was receiving proper medical care is conclusory. And

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defendant fails to show how plaintiff was aware of his emotional injury prior to the VA releasing
information that indicated that Wisner’s physical examinations were improper. The court does not find
as a matter of law that the discovery rule is inapplicable to save plaintiff’s claims from the two-year
statute of limitations under § 2401(b).
IV.

Conclusion
The court denies defendant’s motion with respect to Counts I and II. As an alternative to

dismissal, defendant requested a stay of these proceedings. The magistrate judge has already resolved
this request, and it is therefore denied as moot.
IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Doc. 9) is denied as to
Counts I and II.
IT IS FURTHER ORDERED that plaintiff has voluntarily abandoned Count III, and that
claim is no longer a part of this case.
Dated this 15th day of February, 2017, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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