Doe et al v. United States of America et al
MEMORANDUM AND ORDER granting in part and denying in part defendant's 11 Motion to Dismiss. Defendant's motion to dismiss is denied as to Counts I, IV, and V. Defendant's motion to dismiss is granted as to plaintiffs' negligent hiring and retention claim, but the court retains jurisdiction over plaintiffs' negligent supervision claim against defendant in Count II. Defendant's motion to dismiss is also granted as to Counts III and VI. Further, defendant Robert McDonald is dismissed as a defendant in this case. Signed by District Judge Carlos Murguia on 05/25/2017. (mg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN X. DOE and JANE X. DOE,
UNITED STATES OF AMERICA,
ROBERT A. MCDONALD, and
MARK WISNER, P.A.
Case No. 16-2544
MEMORANDUM AND ORDER
Plaintiffs John X. Doe and Jane X. Doe (“John” and “Jane,” respectively) bring this case
against defendants United States of America, Robert McDonald (Secretary of the Department of
Veterans Affairs), 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 John and elicited unnecessary private information. Plaintiffs
claim that the court has supplemental jurisdiction over their state claims under 28 U.S.C. § 1367(a).
This matter is before the court on defendants United States of America and McDonald’s Motion to
Dismiss. (Doc. 11.) Defendants argue that plaintiffs’ First Amended Complaint (Doc. 10) 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 defendants’
motion in part and denies it in part. Plaintiffs do not oppose defendants’ request to dismiss defendant
McDonald (Doc. 19, at 1 n.1) and plaintiffs’ claims against him are dismissed.
John is a veteran who sought treatment at the Dwight D. Eisenhower VA Medical Center
(“VA”) located in Leavenworth, Kansas. Jane is John’s wife. Wisner treated and provided medical
care for John between 2013 and 2014. Wisner was a physician’s assistant (“PA”) with the VA, but
represented himself to the public as a medical doctor.
In Count I, plaintiffs claim that Wisner practiced and prescribed medicine, including the
performance of physical examinations, under the close supervision of a VA physician. Plaintiffs allege
that Wisner was negligent when he violated the standard of care by attempting to conduct an
unnecessary examination of John’s prostate and conducting improper and/or unnecessary examinations
of John’s genitals without gloves during appointments. They claim that Wisner failed to recognize his
own impairment and refer John to another practitioner. Plaintiffs further allege that Wisner used his
position to elicit unnecessary private information John and was negligent when he prescribed
medication to John that was unnecessary or in improper dosages. And plaintiffs claim that Wisner’s
negligent acts occurred during business hours at the VA hospital and were reasonably incidental to his
employment—making defendant vicariously liable for his acts.
Plaintiffs state that Wisner admitted to failing to meet the standard of care by making
inappropriate sexual comments to his patients, overprescribing medication, and performing
unnecessary testicular and genital exams and other unnecessary contact of his patients for no legitimate
Plaintiffs bring claims of negligent supervision, retention, and hiring against defendant in
Count II. Plaintiffs allege that defendant—via the VA—violated its duty to exercise reasonable care
when it employed, supervised, and retained Wisner. They state that defendant knew or should have
known that Wisner was unable to provide competent medical care to plaintiffs and that Wisner
victimized and was dangerous to other patients. Plaintiffs also claim that defendant possessed reason
to believe that employment of Wisner would result in undue risk of harm to plaintiffs and other
Plaintiffs claim that Wisner was arrested on June 25, 1987, in San Bernardino, California for
“Disorderly Conduct: Solicit Lewd Act” and this information was available through the National
Crime Information Center. Plaintiffs allege that Wisner was accused of sexual assault in 2012 while
employed at the VA. Plaintiffs list other incidents where Wisner was reported for misconduct and
misprescription of medications. Plaintiffs allege that defendant knew or should have known that
Wisner was unable to provide competent medical care to John. Plaintiffs also claim that defendant
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”), K.S.A. § 65-2801, et seq. Plaintiffs allege that VA supervisors failed to
perform actions required by VHA Handbook 1100.19; VHA Directive 2012-030, and all preceding
regulations; and VHA Directive 2004-029.
Plaintiffs also bring claims for negligent infliction of emotional distress, outrage, battery, and
invasion of privacy – intrusion upon seclusion against all defendants. Jane brings a consortium claim
and alleges that as a result of John’s injuries, she has lost the society, conjugal fellowship, love,
affection, consortium, and companionship of her husband.1
Defendant does not separately address the claims of Jane. In a footnote, defendant recognizes that Jane’s claims are
derivative of John’s claims. See Kan. Stat. Ann. § 23-605; Wolfgang v. Mid-American Motorsports, Inc., 898 F. Supp. 783,
790 (D. Kan. 1995). As derivative claims, it appears that they should be brought on behalf of Jane instead of by Jane.
Nevertheless, the court will not address this issue now, as the parties have not independently discussed Jane’s claims.
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate when the court
lacks subject matter jurisdiction over a claim. Plaintiffs claim that subject matter jurisdiction exists
and have 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.
Motions to dismiss 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.
To the extent this court has subject matter jurisdiction, the court must determine whether
plaintiffs’ 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
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).
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. §
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/or inappropriate touching and sexual
comments are not within the duties that a PA is hired to perform, defendant argues, and did not further
the VA’s business.
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).
Plaintiffs claim 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).
Slight Deviation Analysis
Plaintiffs claim 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
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)).
Plaintiffs claim that Wisner’s tortious conduct was not far removed in time, distance, or
purpose from his normal duties and thus, incidental to his employment at the VA. John alleges that he
was Wisner’s patient from 2013 to 2014. During his appointments, plaintiffs allege that Wisner would
lock the door, ask John about sex, and perform physical examinations without gloves. John states that
he never saw Wisner wash his hands. During these examinations, John claims that Wisner placed one
hand on his inner thigh and used the other hand to massage John’s testicles and penis. According to
plaintiffs, Wisner once felt a clamp on John’s scrotum. John explained that it was from a vasectomy,
but Wisner continued massaging and responded that it could be shrapnel requiring further examination.
Wisner would make statements like “things are looking good down there” and “you have nice calves.”
Wisner repeatedly told John that he needed a prostate exam until John informed Wisner that he had
recently had a colonoscopy. Plaintiffs further allege that Wisner asked inappropriate questions about
John’s sex life, and also asked Jane questions about her sex life.
Plaintiffs reference several of Wisner’s admissions in his complaint. Wisner admitted to
making inappropriate sexual comments to his patients. Wisner also admitted that he performed
unnecessary testicular and genital examinations and unnecessary contact of his patients for no
legitimate medical purpose.
Plaintiffs argue that while Wisner’s acts were improper, they were still in line with his duties he
was hired to perform as a PA. At this stage, plaintiffs have 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 John, even though it may have been done in excess and
included inappropriate comments. Some of Wisner’s duties included prescribing medication and
performing physical examinations on patients. There is no dispute that misprescription of medication
and 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. Any improper examinations occurred during appointments when John sought medical
treatment from the VA. And plaintiffs do not allege that examinations occurred after business hours or
outside of the VA’s building.
Moreover, full physical examinations (including examination of the VA patients’ genitalia) 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.
VA Immunity Statute for Intentional Torts
Defendant argues that 28 U.S.C. § 2680(h) bars plaintiffs’ 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,
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 John;
(2) Wisner’s unnecessary or improper touching was not related or incidental to John’s medical
treatment; and (3) plaintiffs characterized the conduct as intentional and sexually charged.
For the reasons previously set forth, defendant’s arguments fail at this stage of the litigation.
Plaintiffs have presented a plausible claim that the VA Immunity Statute applies.
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 and retention or supervision are separate and
distinct torts 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).
“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.
Kansas recognizes a cause of action for negligent hiring, which is separate and distinct from the
tort of negligent supervision. Lowe v. Surpas Res. Corp., 253 F. Supp. 2d 1209, 1245 (D. Kan. 2003).
“The employer is negligent in hiring or retaining such an employee when the employer knew or should
have known of the employee’s incompetence or unfitness.” Id. (quoting Prugue v. Monley, 28 P.3d
1046, 1049 (Kan. Ct. App. 2001)).
Plaintiffs allege that the VA knew or should have known that Wisner was dangerous and
further that he had a propensity to commit inappropriate acts against plaintiffs 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
plaintiffs’ negligent supervision and hiring and retention claims.
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
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 avoid dismissal under Rule 12(b)(6), plaintiffs must allege facts that place their FTCA claim
facially outside the discretionary function exception. Id. at 1130. The court performs a two-pronged
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. Specifically, the court
considers if there is a federal statute, regulation, or policy “sufficiently specific [and mandatory] to
remove decision[-]making under [it] from the discretionary function exception.” Elder v. United
States, 312 F.3d 1172, 1177 (10th Cir. 2002); see also Franklin Sav. Corp., 180 F.3d at 1131. 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.” Franklin Sav. Corp., 180 F.3d
at 1130. 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, 486
U.S. at 536–37).
Application: The Discretionary Function Exception
Plaintiffs allege 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
Directives 1063; 2004-029; 2012-030; and/or PALA, Kan. Stat. Ann. § 65-28a01. They also claim that
the VA failed to adequately supervise and control Wisner, given his known propensities toward
harming VA patients. Plaintiffs further allege that the VA failed to perform the credentialing
requirements applicable to PAs under VHA Handbook 1100.19.
To overcome the discretionary function exception, 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) (emphasis added). The court will not consider the state of
VHA Directive 1063
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. Plaintiffs allege that this was not done.
VHA Directive 1063 was issued on December 24, 2013. Plaintiffs claim that Wisner
committed wrongful acts at John’s appointments, which occurred from 2013 to 2014. To the extent
that plaintiffs’ claims occurred prior to December 24, 2013, VHA Directive 1063 was not the
VHA Directive 2004-029
Plaintiffs also claim that VA supervisors failed to abide by VHA Directive 2004-029.
Although VHA Directive 2004-029 indicates that it expired on July 31, 2009, VHA Directive 1063
rescinded the 2004 version in December 2013. VHA Directive 2004-029 was the federal policy that
the VA was required to follow prior to December 24, 2013.
VHA Directive 2004-029 required that a supervising physician conduct a structured review of
the assigned PA’s performance every two years at the time of the renewal of the PA’s scope of
practice. Structured reviews and renewal of an uncertified PA’s scope of practice were required to be
conducted annually. The review had to include:
(1) Overall assessment.
(2) Results of departmental/service monitoring and evaluation, drug utilization review,
blood use evaluation, medical record review, or surgical case review or any other
objective quality improvement data available.
(3) The PA’s scope of practice.
The PA’s assigned chief of clinical service was required to monitor the review process and concur.
Plaintiffs allege that the VA failed to comply with the review requirements mandated by VHA
Directive 2004-029. At this stage of the litigation, plaintiffs have sufficiently placed their negligent
supervision claim outside the discretionary function exception. The court retains jurisdiction over
plaintiffs’ negligent supervision claim.
Negligent Hiring and Retention
Plaintiffs also allege that defendant failed to adequately investigate Wisner’s background and
was negligent in hiring and retaining Wisner as a PA. Specifically, plaintiffs allege that the VA failed
to perform specific actions required by VHA Handbook 1100.19 and VHA Directive 2012-030, which
apply to the “credentialing” of health care professionals, including PAs.2 Both polices outline certain
actions to be taken as part of the credentialing process, which is defined as “the systematic process of
screening and evaluating qualifications and other credentials . . . .” See VHA Handbook 1100.19 §§ 1,
2(d). For example, “[p]roper screening through the [National Practitioner Data Bank-Health Integrity
and Protection Data Bank (“NPDB-HIPDP”)] is required for applicants” and the information received
should be “considered together with other relevant data in evaluating a practitioner’s credentials.” Id.
§ 13(l)(1). If the screening “shows adverse action or malpractice reports, an evaluation of the
circumstances and documentation” is required and must follow certain guidelines outlined in the
handbook. Id. § 13(l)(6). The provisions in VHA Handbook 1100.19 and VHA Directive 2012-30
identified by plaintiffs, however, do not mandate a specific hiring or employment retention decision.
The policies require VA personnel to complete certain specific and mandatory actions, but ultimately
leave the hiring or employment retention decisions to the discretion of VA personnel based on their
review and evaluation of the information collected during the credentialing process.
The VHA Handbook 1100.19 and VHA Directive 2012-30 also apply to the “privileging” of health care professionals
(clinical privileging is “the process by which a practitioner, licensed for independent practice . . . , is permitted by law and
the facility to practice independently . . . .”). VHA Handbook 1100.19 § 2(e). However, only the credentialing
requirements apply to PAs. Id. § 3(a).
VHA Directive 2012-30 and VHA Handbook 1100.19 were issued on October 11 and 15, 2012,
respectively. In plaintiffs’ complaint, they allege that in 2011, a VA patient reported Wisner’s
inappropriate conduct to a VA Medical Center case manager. Wisner was employed by the VA prior
to these policies’ enactments; thus, the requirements contained within were not mandated on the VA at
the time it hired Wisner. Although plaintiffs allege that defendant violated VHA Directive 2012-30
and all preceding regulations, plaintiffs do not provide the court with a specific federal policy
applicable at the time the VA hired Wisner, and therefore have failed to meet their burden to overcome
the discretionary function exception. See Sydnes, 523 F.3d at 1184.
On the other hand, both VHA Directive 2012-30 and VHA Handbook 1100.19 require
credentialing and verification with respect to reappointment of a PA—both of which relate to the VA’s
retention of Wisner after October 2012.
Although neither party has briefed the issue, there is divided circuit precedent as to whether
plaintiffs can “avoid the discretionary-function bar by alleging that” defendant breached certain
specific duties, even though the ultimate decisions “were themselves discretionary.” See Franklin Sav.
Corp., 180 F.3d at 1132 n.11 (citing divided precedent from other circuits on this issue generally,
under which some courts barred such claims absolutely, while other courts barred the claim, but
foresaw exceptions, and one court allowed such a claim); see also Johnson v. United States, 949 F.2d
332, 339–40 (10th Cir. 1991) (rejecting plaintiff’s argument that certain allegedly non-discretionary
tasks of gathering and communicating information about an accident should be separated from the
discretionary decision by the National Park Service of how to conduct the rescue of an injured
mountain climber, as the former tasks were “inextricably tied” to the latter discretionary decision,
leaving “[n]o meaningful way . . . to consider the nature of [the former non-discretionary] acts apart
from the total rescue decision”). In Franklin Savings Corp., the Tenth Circuit acknowledged the issue,
but expressed no opinion on the legal viability of such a claim because the plaintiffs’ “complaint did
not attribute any harm to the breach of a specific mandate to draft memoranda, as opposed to a failure
to perform the discretionary function of weighing options.” Id. at 1132 n.11, 1133. Here, plaintiffs
allege that had defendant followed the
specific, non-discretionary requirements [in VHA Handbook 1100.19 and VHA
Directive 2012-30], [it] would have discovered Wisner’s sex-related criminal
conviction. As a result, the VA . . . negligently retained [Wisner] each time it failed to
properly evaluate him prior to reappointments.
(Doc. 19, at 24–25 (citation omitted).)
The court finds the analysis in Johnson persuasive. While the VA policies mandate an
investigation, documentation, and review of the circumstances, the VA still retains discretion to (1)
continue employment with no change; (2) restrict clinical privileges; or (3) deny reappointment and/or
terminate. See, e.g., VHA Handbook 1100.19 §§ 13k(4), m(4)(e), and r. Although plaintiffs’ retention
claim is tied to specific, non-discretionary requirements of evaluating the circumstances, the VA’s
ultimate decision with respect to retaining or terminating Wisner was discretionary.
Even though plaintiffs fail under Berkovitz’s first prong, they may still overcome the
discretionary function exception by demonstrating that the nature of the actions taken does not
implicate public policy concerns, or is not susceptible to policy analysis. See Sydnes, 523 F.3d at
1185. With respect to the second prong of Berkovitz, the court considers whether the judgment
exercised by the government official is of the kind that the discretionary function exception was
designed to shield. 486 U.S at 536. Decisions regarding employment and termination are precisely the
types of administrative actions the discretionary function exception seeks to shield. Sydnes, 523 F.3d
at 1185–86 (“[E]mployment and termination decisions are, as a class, the kind of matters requiring
consideration of a wide range of policy factors, including ‘budgetary constraints, public perception,
economic conditions, individual backgrounds, office diversity, experience, and employer intuition.’”)
The court is mindful that plaintiffs’ retention issue is a close call, but the case law is clear: the
court applies an objective test. See Franklin Sav. Corp., 180 F.3d at 1141 (“The inquiry necessary to
decide whether this case involved ‘negligent, good-faith conservation’ or ‘intentional, bad-faith
liquidation’ would entail the type of judicial second-guessing which led the Gaubert Court to hold that
courts need not consider officials’ actual decisionmaking in FTCA cases.”) (quoting United States v.
Gaubert, 499 U.S. 315, 325 (1991)). The purpose of the discretionary function exception to the wavier
of sovereign immunity is to dismiss a FTCA claim at the earliest possible stage of the litigation and
spare the government from discovery and trial expense. See generally Franklin Sav. Corp., 180 F.3d
at 1138 (comparing FTCA claims to qualified immunity claims). Under the guidance of Berkovitz and
Franklin Sav. Corp., the discretionary function exception to the waiver of sovereign immunity applies
to plaintiffs’ negligent hiring and retention claim presented in Count II. The court lacks jurisdiction
over this portion of Count II.
Plaintiffs bring claims of negligent infliction of emotional distress against defendant.
Plaintiffs allege that Wisner’s examination of John and offensive inquiries into their sex lives were
committed with reckless disregard for plaintiffs. They also alleges that Wisner’s conduct was extreme
and outrageous as well as the direct and proximate cause of plaintiffs’ foreseeable mental distress.
Plaintiffs’ injuries include: past, present, and future shame, humiliation, medically significant
emotional distress, loss of enjoyment of life, and anger. Jane claims additional injuries in her
consortium claim. Plaintiffs allege that their mental distress was extreme, severe, medically
diagnosable, and significant such that no reasonable person should be expected to endure it.
Defendant claims that plaintiffs have failed to show a qualifying physical injury to support a
claim for negligent infliction of emotional distress under Kansas law.
“In Kansas, the elements of a claim for negligent infliction of emotional distress include a
qualifying physical injury.” Majors v. Hillebrand, 349 P.3d 1283, 1285 (Kan. Ct. App. 2015).
However, the “physical injury rule is inapplicable where the injurious conduct is willful or wanton, or
the defendant acts with intent to injure.” Id. (citing Hoard v. Shawnee Mission Med. Center, 662 P.2d
1214, 1219–20 (Kan. 1983)).
Plaintiffs acknowledge that they must show a qualifying physical injury, but respond that they
pleaded that Wisner’s conduct was willful and wanton—specifically, Wisner acted with reckless
disregard for plaintiffs. If plaintiffs’ theory is to be accepted, it is not clear how the negligence claim
would be anything but a reiteration of plaintiffs’ outrage claim, which asserts liability on the basis of
Wisner’s reckless disregard of plaintiffs’ well-being.
Generally, negligence has no application to willful or wanton wrongs. Anspach v. Tomkins
Indus., Inc., 817 F. Supp. 1499, 1509 (D. Kan. 1993) (citing Bowman v. Doherty, 686 P.2d 112, 114
(Kan. 1984). “Wanton conduct is distinguished from a mere lack of due care by the fact that the actor
realized the imminence of injury to others from his acts and refrained from taking steps to prevent the
injury. This reckless disregard or complete indifference rises substantially beyond mere negligence.”
Bowman, 686 P.2d at 118.
Plaintiffs do not take the position that defendant is liable for simple negligent infliction of
emotional distress (arising out of conduct that was not wanton). To the extent plaintiffs’ negligence
claims are not based upon Wisner’s intentional or wanton conduct, in the absence of contemporaneous
resultant physical injury, their negligent infliction of emotional distress claim cannot stand. See Patton
v. Entercom Kansas City, L.L.C., No. 13-2186-DDC-JPO, 2014 WL 2557908, at *10–12 (D. Kan. June
6, 2014) (rejecting plaintiff’s negligent supervision claim where plaintiff alleged she felt upset, shaken,
embarrassed, humiliated, and insulted, and that she experienced sleeplessness, anxiety, shortness of
breath, and feeling more emotional and irritable) (citing Schweizer-Reschke v. Avent, Inc., 874 F. Supp.
1187, 1196–97 (D. Kan. 1995) (rejecting plaintiff’s claim for negligent infliction of emotional distress
where plaintiff alleged she suffered vomiting, diarrhea, anxiety, shortness of breath, rapid heartbeat,
and tightness of breath). The court therefore dismisses Count III.
In Kansas, the court determines two threshold requirements for the tort of outrage: “(1) whether
the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit
recovery; and (2) whether the emotional distress suffered by the plaintiff was of such extreme degree
the law must intervene because the distress inflicted was so severe that no reasonable person should be
expected to endure it.” Smith v. Welch, 967 P.2d 727, 733 (Kan. 1998). Plaintiffs must show: (1)
Wisner’s conduct was intentional or in reckless disregard of plaintiffs; (2) the conduct was extreme
and outrageous; (3) there was a causal connection between Wisner’s conduct and plaintiffs’ mental
distress; and (4) plaintiffs’ mental distress was extreme and severe. Id.
Defendant argues that plaintiffs’ claims are standard boilerplate allegations and also that
plaintiffs never claimed their mental distress was severe enough to require counseling or medication.
But plaintiffs allege that Wisner acted in reckless disregard of plaintiffs’ well-beings, resulting in
medically significant, extreme, and severe emotional distress. In their invasion of privacy claim,
plaintiffs state that as a result of Wisner’s conduct, they suffered long-lasting, medically significant
emotional distress that required medical treatment. Plaintiffs also claim that Wisner’s conduct was
“extreme and outrageous by any reasonable standard . . . in any community of America, and goes
beyond the bounds of decency[,] so as to be regarded as utterly atrocious and intolerable in civilized
society.” (Doc. 10, at 22.) It is plausible from the pleadings that plaintiffs obtained medical treatment
for the emotional distress they suffered as a result of Wisner’s reckless conduct. At this stage, the
court assumes that the pleadings are true and makes all inference in favor of plaintiffs. Plaintiffs’
claim of outrage is plausible.
Under Kansas law, a medical examination of the body of a person is a technical invasion of
privacy, battery, or trespass, regardless of its result, unless the person or some authorized person
consents to it. Smith, 967 P.2d at 732. “Ordinarily, as applied to a surgical operation, the distinction
‘between an unauthorized operation amounting to assault and battery on the one hand, and negligence
such as would constitute malpractice on the other, is that the former is intentional while the latter is
unintentional.’” Id. (quoting Hershey v. Peake, 223 P. 1113, 1114 (Kan. 1924)). In Kansas, assault,
battery, and sexual battery are intentional civil injuries and are also separate and distinct statutory
John sufficiently alleges that Wisner performed a technical invasion of privacy, or a battery,
when he conducted an improper and unnecessary examination that was beyond the scope of any
legitimate medical purpose. John did not knowingly consent to such an examination.
As addressed above, John presents a plausible claim that Wisner was acting within the scope of
his employment during John’s appointments, and the court has jurisdiction over his battery claim.
Kansas recognizes an invasion of privacy claim based upon a defendant’s intrusion upon
seclusion. Lowe v. Surpas Res. Corp., 253 F. Supp. 2d 1209, 1236–37 (D. Kan. 2003) (citing Moore v.
R.Z. Sims Chevrolet-Subaru, Inc., 738 P.2d 852, 856 (Kan. 1987)) “[A] plaintiff must establish the
existence of two conditions: ‘First, something in the nature of an intentional interference in the solitude
or seclusion of a person’s physical being, or prying into his private affairs or concerns, and second, that
the intrusion would be highly offensive to a reasonable person.’” Id. at 1237 (quoting Moore, 738 P.2d
at 857. To be liable, the defendant must place himself physically, or by means of his senses, within
plaintiff’s zone of privacy. Ali v. Douglas Cable Commc’ns, 929 F. Supp. 1362, 1382 (D. Kan. 1996).
“Consequently, it is both the manner of intrusion as well as the nature of the information acquired that
must rise to the level of being highly offensive to a reasonable person.” Id.
John claims that Wisner intentionally interfered with his seclusion when he “pried into [his]
personal affairs and concerns by asking him about his personal life, sexual activities[,] and genitalia
during a medical examination.” (Doc. 10, at 23.) John argues that Wisner’s conduct was intrusive
such that a reasonable person would be offended; but John also maintains that Wisner’s offensive
inquiries served the VA’s interest because the questioning could have obtained medically relevant
John’s position on his claim of invasion of privacy is inconsistent with his allegations that
Wisner was acting within the scope of his employment. As previously stated, it is reasonable to expect
that an appointment with a PA might include questions about the patient’s personal life and a full
physical examination. John is correct in that a VA patient would have a heightened interest in privacy
concerning his medical treatment and sexual information; however, the fact that Wisner asked John
about his sex life is not unreasonable. John does not allege that Wisner publicized John’s personal
information. If Wisner’s inquiries were offensive and unreasonable, then he would not have been
acting within the scope of his employment—a position that John opposes. See generally O’Shea, 350
F.3d at 1107 (a slight deviation does not amount to turning aside completely from the employer’s
business, so as to be inconsistent with its pursuit, and is often reasonably expected). The court finds
that John’s invasion of privacy claim is not plausible.
Statute of Limitations
Plaintiffs’ claims stem from medical treatment John received from 2013 to 2014. John’s
administrative claim indicates that he began seeing Wisner in April 2013. John filed his administrative
claim on July 29, 2015. Jane filed hers on October 30, 2015. Both claims referenced John’s
appointments with Wisner. Defendant argues that plaintiffs’ claims occurring before July 29, 2013,
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,
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.
Plaintiffs claim that they were unaware of Wisner’s misconduct or their emotional injury until
late 2014, when the VA contacted “Wisner victims.” (Doc. 19, at 34.) According to plaintiffs, the
emotional injury occurred when they had knowledge that Wisner’s intent may have been to exploit
John as well as treat him.
At this stage, the court finds that defendant has not met its burden. Defendant fails to show
how plaintiffs were aware of their 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 plaintiffs’ claims from the two-year statute of limitations under §
The court has jurisdiction to review plaintiffs’ claims for negligence, battery, and outrage
against defendant under vicarious liability. Plaintiffs adequately allege that Wisner was acting within
the scope of his employment and plaintiffs’ claims are plausible. But the court finds that plaintiffs’
claims for negligent infliction of emotional distress and invasion of privacy are not plausible under
Kansas law. The court also has jurisdiction to review plaintiffs’ negligent supervision claim against
defendant. However, the discretionary function exception precludes the court’s jurisdiction to review
plaintiffs’ negligent hiring and retention claim.
IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Doc. 11) is denied as to
Counts I, IV, and V.
IT IS FURTHER ORDERED that defendant’s motion to dismiss is granted as to plaintiffs’
negligent hiring and retention claim, but the court retains jurisdiction over plaintiffs’ negligent
supervision claim against defendant in Count II. Defendant’s motion to dismiss is also granted as to
Counts III and VI.
IT IS FURTHER ORDERED that defendant Robert McDonald is dismissed as a defendant in
Dated this 25th day of May, 2017, at Kansas City, Kansas.
s/ Carlos Murguia
United States District Judge
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