Doe v. Wisner et al

Filing 63

MEMORANDUM AND ORDER granting in part and denying in part 49 Motion for Summary Judgment. Signed by District Judge Daniel D. Crabtree on 8/17/2021. (kas)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN A. DOE,
Plaintiff,
v.

Case No. 17-2255-DDC

UNITED STATES OF
AMERICA, et al.,
Defendants.
____________________________________
MEMORANDUM AND ORDER
The matter arises out of plaintiff’s tort action against Mark Wisner and his employer—
the United States. The Pretrial Order (Doc. 48) explains that plaintiff seeks to recover via three
alternative causes of action:


Negligence (medical malpractice) against all defendants,



Negligent supervision against defendant United States, and



Outrage1 against all defendants.

The government seeks summary judgment against all three claims. See Doc. 49; Doc. 50 at 3.
Plaintiff has filed a Response (Doc. 57) to the government’s summary judgment motion. And
the United States has filed a Reply (Doc. 62). For reasons explained below, the court grants the
Motion for Summary Judgment in part and denies it in part. The United States deserves
summary judgment against plaintiff’s negligence claim and negligent supervision claim. But, the

1

The tort of outrage is also known as intentional infliction of emotional distress (IIED). See
Nkemakolam v. St. John’s Mil. Sch., 994 F. Supp. 2d 1193, 1197 (D. Kan. 2014) (Lungstrum, J.) (citing
Valadez v. Emmis Commc’ns, 229 P.3d 389, 394 (Kan. 2010)).

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court denies summary judgment against the outrage claim. The court explains why below,
beginning with the uncontroverted material facts.
I.

Summary Judgment Facts2
The United States is interested in providing medical treatment to patients at Department

of Veterans Affairs (VA) medical centers. Doc. 48 at 3 (Pretrial Order ¶ 2.a.7.). The VA
employed Mark E. Wisner as a Physician Assistant from September 28, 2008 until June 28,
2014. Doc. 48 at 3 (Pretrial Order ¶ 2.a.1.). Wisner served as the primary care provider for
approximately 750 to 1,000 patients at the VA Medical Center (VAMC) where the VA employed
Wisner to provide direct patient care to veterans, including plaintiff. See Doc. 57-4 at 23 (Cline
Dep. 225:8–18).
Veteran Health Administration Directive 1063
Veteran Health Administration (VHA) Directive 1063, titled “Utilization of Physician
Assistants (PAs),” was implemented on December 24, 2013; it rescinded and replaced VHA
Directive 2004-29. See Doc. 50-2 at 1 (VHA Dir. 1063). VHA Directive 1063 refers to a
quarterly “retrospective review of at least five randomly selected patient encounter notes,” not a
retrospective review of the entire medical record for five randomly selected patients. See id. at
11 (emphasis added). The Directive was in effect only for one full annual quarter of Wisner’s
tenure treating patients at the VA. See id. at 1; Doc. 48 at 3 (Pretrial Order ¶¶ 2.a.1.–3.).

2

Plaintiff supports many statements of fact by citing his factual contentions from the Pretrial Order
(Doc. 48). The United States responds that those statements of fact are uncontroverted “insofar as this is
a statement from ‘Plaintiff’s Contentions’ from the Pretrial Order.” See, e.g., Doc. 62 at 6–9. While the
Pretrial Order’s inclusion of these contentions is undisputed, the fact of inclusion itself is not material to
the issues the government’s summary judgment motion presents. See also Doc. 57 at 11 (¶ 30)
(presenting a similar dynamic where plaintiff does not controvert that defendant accurately quotes
plaintiff’s Complaint). The court ignores immaterial facts, even if undisputed. Fed. R. Civ. P. 56(a).

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Oversight of Wisner
As a physician assistant at the Leavenworth VAMC, Wisner practiced under the
supervision of various physicians. Doc. 48 at 5 (Pretrial Order ¶ 2.a.22.). As a physician’s
assistant, Wisner only was able to provide medical care to plaintiff and other veterans under the
supervision of VA physicians. From 2010 to the end of Wisner’s employment by the VA, Dr.
Daniel Cline served as Wisner’s supervising physician and first-line supervisor. Doc. 57-4 at 27
(Cline Dep. 239:8–12). Supervising Wisner was within Dr. Cline’s scope of employment. Id. at
31 (Cline Dep. 246:22–25).
Under VHA Directive 1063, Wisner’s collaborating physicians, including Dr. Cline, were
responsible for providing clinical oversight, consultation, and patient care management
assistance to Wisner. Doc. 48 at 5 (Pretrial Order ¶ 2.a.24.). VHA Directive 1063 also made
collaborating physicians responsible for monitoring Wisner’s clinical activities to ensure they
were within the authorized scope of practice. Id. (Pretrial Order ¶ 2.a.25.). And the directive
made the Chief of Service in Wisner’s chain of command at the VA responsible for taking action
to correct any discovered deficiencies in Wisner’s clinical practice. Id. (Pretrial Order ¶ 2.a.26.).
The VA employed Wisner to, in part, conduct physical examinations of patients which
may have included sensitive or “intimate” or “uncomfortable” matters. Id. at 3–4 (Pretrial Order
¶¶ 2.a.8.–9.). The United States neither required a supervisor’s presence during Wisner’s
examinations of his patients nor required a chaperone’s presence during Wisner’s examinations
of his male patients. Id. at 4 (Pretrial Order ¶¶ 2.a.10.–11.).
March 2012 Allegations Against Wisner
In March 2012, Wisner’s direct supervisor, Dr. Cline, knew of an allegation that Wisner
had performed an inappropriate patient examination. Doc. 57-4 at 27 (Cline Dep. 239:8–12).

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On March 29, 2012, a patient alleged that Wisner had sexually assaulted him during a medical
appointment the previous day. Doc. 48 at 4 (Pretrial Order ¶ 2.a.12.). That day, VA police and
the VA Office of Inspector General (OIG) were made aware of the patient’s allegations. Id.
(Pretrial Order ¶ 2.a.13.). But these allegations were investigated and closed as unproven. Id.
(Pretrial Order ¶ 2.a.14.).
Plaintiff’s Treatment at the Leavenworth VAMC
Plaintiff sought and received care at the Leavenworth VAMC. Doc. 48 at 4–5 (Pretrial
Order ¶¶ 2.a.15., 23.). According to his medical records, plaintiff first saw Wisner at the VAMC
on December 13, 2011. Doc. 48 at 6 (Pretrial Order ¶ 2.a.31.). Plaintiff’s medical records
identify a total of four visits with Wisner at the VAMC—December 13, 2011; January 24, 2012;
June 4, 2012; and May 1, 2014. Doc. 48 at 6 (Pretrial Order ¶ 2.a.33.). Wisner’s medically
documented examinations of plaintiff occurred in a VAMC exam room while the facility was
open and operating. Id. (Pretrial Order ¶¶ 2.a.16.–17.). Wisner’s medically documented genital
exams were part of his overall physical examinations. Id. (Pretrial Order ¶ 2.a.18.). At least
some portion of the medical care Wisner provided plaintiff was for a valid medical purpose to
provide diagnostic care. Id. (Pretrial Order ¶ 2.a.19.).
Plaintiff’s May 1, 2014 VAMC Visit with Wisner
Plaintiff suffers from prostatitis. Doc. 50-5 at 1. On May 1, 2014, plaintiff saw Wisner
for this condition. Id. According to plaintiff’s medical records, that was the last time plaintiff
saw Wisner at the VAMC. Doc. 48 at 6 (Pretrial Order ¶ 2.a.32.). Later, plaintiff told VA OIG
Special Agent Baker that Wisner’s genital exam was an “unusual exam based on his past exams
for prostatitis symptoms.” Doc. 50-5 at 2. Plaintiff told Special Agent Baker that Wisner’s
rectal examination was “HIGHLY unusual” and involved “much deeper” penetration (than his

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previous exams) twice by an object for 20 to 30 seconds. Id.; see also Doc. 57-21 at 2–14
(plaintiff’s testimony describing Wisner’s May 1, 2014 acts and detailing how those acts differed
from plaintiff’s previous rectal exams and prostate treatment).
Plaintiff told Special Agent Baker that he asked Wisner “WHAT THE F[ ] WAS
THAT?” after Wisner’s actions. Doc. 50-5 at 2. Plaintiff reported that, “Wisner may have been
washing his genitals in the sink” after he had stopped touching plaintiff. Id. Plaintiff told
Special Agent Baker that when Wisner escorted him out of the examination room, he
“contemplated striking [Wisner] but recognized that this would be a felony.” Id. Based on his
interactions with Wisner, plaintiff sought mental health treatment from several people, including
someone at the VAMC. Doc. 48 at 6–7 (Pretrial Order ¶ 2.a.40.).
Wisner’s Departure and Fallout
On May 19, 2014, the VA placed Wisner on Authorized Absence. Doc. 48 at 3 (Pretrial
Order ¶ 2.a.2.). The VA placed Wisner on administrative leave at the end of May 2014 based on
a report of sexual misconduct. Id. (Pretrial Order ¶ 2.a.3.) (citation omitted). Wisner remained
on Administrative Absence until June 28, 2014, when he voluntarily retired from the VA based
on his eligibility under laws in effect at that time. Doc. 50-4 at 10–11 (Baker Dep. 21:22–22:3).
On January 23, 2015, VA Office of Inspector General (OIG) Special Agent Kerry Baker
and Lt. Detective Joshua Patzwald of the Leavenworth County, Kansas Sheriff’s Office,
interviewed Wisner. See Doc. 50-7 at 2.3 During this interview, Wisner shared that he crossed
the professional line and was excessive in providing purported genital examinations. Id. Wisner
shared that he performed genital “examinations” on his patients where they were not medically

3

Plaintiff emphasizes the absence of any basis to think Wisner’s comments during this interview
referred specifically to either plaintiff or Wisner’s examination of plaintiff. See Doc. 57 at 5 (¶ 9). He
extends this commentary to many of Wisner’s admissions. See id. at 5–8.

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indicated or necessary, and that he did so for his own pleasure. See id. Wisner acknowledged
that he chose his victims, and that his victims were all attractive and of a similar body type. See
id. at 3.
Wisner acknowledged he knew that what he was doing to his patients was wrong and that
he lacked self-control. See id. Wisner shared that he provided genital examinations to his
patients to satisfy his own curiosity and that all of his behavior was designed simply to satisfy his
curiosity. See id. Wisner admitted that he took active steps to avoid getting caught. Id.
Specifically, he falsified medical records. Id. His acts of falsification included failing to
document multiple genital examinations. Id. at 2–4; Doc. 50-8 at 10 (¶ 35).
In February 2015, Wisner entered into a Consent Order with the Kansas State Board of
Healing Arts to Surrender his license to practice medicine. Doc. 48 at 3 (Pretrial Order ¶ 2.a.4.).
In the Consent Order, Wisner admitted that he “used his position as a Physician Assistant at the
Dwight D. Eisenhower VA Medical Center in Leavenworth, Kansas to commit sexual battery
crimes against veteran patients[.]” Doc. 50-8 at 3 (¶ 11). He also admitted that he “repeatedly
sexually assaulted” his patients, “had inappropriate sexual contact” with them, and “made
inappropriate sexual comments” to his patients. Id. at 10 (¶ 33).
Wisner faced a criminal sodomy charge based on his actions towards plaintiff on May 1,
2014. Doc. 48 at 6 (Pretrial Order ¶ 2.a.36.). Plaintiff confirmed that he testified at Wisner’s
criminal trial. Doc. 50-6 at 5 (Pl.’s Dep. 57:3–7). In August 2017, Wisner was convicted of
multiple criminal charges in the Leavenworth County, Kansas, District Court—including
criminal sodomy, aggravated sexual battery, and sexual battery. Doc. 48 at 3 (Pretrial Order ¶
2.a.5.). Wisner received a prison sentence of 187 months. Id. (Pretrial Order ¶ 2.a.5.). He
currently is in custody serving that sentence. Id.

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On September 8, 2017, the VA’s Office of Regional Counsel received a request for
representation from Wisner. Id. at 4 (Pretrial Order ¶ 2.a.20.). On September 27, 2017, the
Office of Regional Counsel denied Wisner’s request. Id. at 5 (Pretrial Order ¶ 2.a.21.).
Plaintiff’s Legal Action
On April 29, 2016, plaintiff filed an SF-95. Id. at 7 (Pretrial Order ¶ 2.a.41.). This
administrative claim asserts that Wisner’s “deviations constituted sexual assault, sexual battery
and deviate sexual assault (rape/sodomy).” See Doc. 50-9 at 4; Doc. 48 at 7 (Pretrial Order ¶
2.b.41.); Doc. 50-6 at 4 (Pl.’s Dep. 56:13–23). Plaintiff’s administrative claim states that on
“June 22, 2015, the State of Kansas filed a criminal complaint against Wisner alleging
aggravated criminal sodomy with person/animal and victim physically powerless, related to his 1
May 2014 patient encounter with [plaintiff].” See Doc. 50-9 at 5.
On April 17, 2017, the VA denied plaintiff’s administrative claim. Doc. 48 at 7 (Pretrial
Order ¶ 2.a.42.). On May 1, 2017, plaintiff filed this lawsuit. Id. (Pretrial Order ¶ 2.a.43.). This
lawsuit is based on plaintiff’s May 1, 2014 visit with Wisner at the VAMC and plaintiff makes
no claims in this lawsuit based on any other visits he had with Wisner. Doc. 48 at 6 (Pretrial
Order ¶¶ 2.a.34.–35.). Plaintiff timely disclosed experts to address the “examination, diagnosis,
care, treatment, or evaluation of Plaintiff,” but he did not disclose an expert to support his claim
of negligence arising from Wisner’s treatment of him on May 1, 2014. Doc. 50-10 (Designations
of Pl.’s Expert Witnesses).
II.

Legal Standard
Summary judgment is appropriate if the moving party demonstrates that “no genuine

dispute” exists about “any material fact” and that it is “entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the

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court applies this standard, it views the evidence and draws reasonable inferences in the light
most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). When
deciding whether the parties have shouldered their summary judgment burdens, “the judge’s
function is not . . . to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986).
With this standard in mind, the court considers defendant’s summary judgment motion.
III.

Discussion
Defendant United States argues that it deserves summary judgment against plaintiff’s

claims. The government makes three general arguments for summary judgment: (1) plaintiff’s
claims fail for lack of supporting expert testimony; (2) the United States has not waived its
sovereign immunity for Wisner’s actions; and (3) plaintiff’s negligent supervision claim fails.
See Doc. 50 at 1–2. The court considers each of these arguments and plaintiff’s respective
counter arguments. The court first will address whether plaintiff’s failure to secure an expert
witness supporting his medical malpractice theory of liability dooms his negligence claim. But
before turning to the parties’ arguments, the court briefly discusses sovereign immunity and the
Federal Tort Claims Act.
A.

Federal Tort Claims Act (FTCA) Standard

“Absent a waiver, sovereign immunity shields the Federal Government and its agencies
from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). Congress occasionally waives federal
sovereign immunity and consents to suit. But a “waiver of sovereign immunity must be strictly
construed, in terms of its scope, in favor of the sovereign[.]” Sossamon v. Texas, 563 U.S. 277,
292 (2011) (citation and internal quotation marks omitted). And “the party suing the government

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bears the burden to prove a waiver of sovereign immunity[.]” Ohlsen v. United States, 998 F.3d
1143, 1154 (10th Cir. 2021).
“The Federal Tort Claims Act (FTCA) allows a plaintiff to bring certain state-law tort
suits against the Federal Government.” Brownback v. King, 141 S. Ct. 740, 745 (2021). “Under
the FTCA, Congress granted a ‘limited waiver of sovereign immunity’ by ‘making the Federal
Government liable to the same extent as a private party for certain torts of federal employees.’”
Ohlsen, 998 F.3d at 1153 (quoting United States v. Orleans, 425 U.S. 807, 813 (1976)). The
statute provides that the United States may face liability for injuries “caused by the negligent or
wrongful act or omission of any employee of the Government while 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)(1).
“But the FTCA carves out several important exceptions. And when an exception applies,
sovereign immunity remains, and federal courts lack jurisdiction.” Ohlsen, 998 F.3d at 1154
(cleaned up). Our Circuit has explained that “exceptions to the FTCA are to be narrowly
construed[.]” Id. (cleaned up).
The court now considers whether the United States deserves summary judgment against
plaintiff’s claims.
B.

Whether Plaintiff’s Failure to Support his Medical Malpractice Negligence
Claim with Expert Testimony Entitles the United States to Summary
Judgment

Defendant asserts that plaintiff’s failure to adduce expert testimony to support his
medical malpractice negligence claim precludes plaintiff from prevailing on that theory of
liability as a matter of law. Doc. 50 at 12–14. The court agrees, and now explains why.

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Under Kansas law, a medical malpractice plaintiff must prove:
(1) The health care provider owed the patient a duty of care and was required to
meet or exceed a certain standard of care to protect the patient from injury; (2) the
provider breached this duty or deviated from the applicable standard of care; (3) the
patient was injured; and (4) the injury proximately resulted from the breach of the
standard of care.
Drouhard-Nordhus v. Rosenquist, 345 P.3d 281, 286 (Kan. 2015).
“The plaintiff in a medical malpractice case bears the burden of showing not only the
doctor’s negligence, but that the negligence caused the injury.” Hare v. Wendler, 949 P.2d 1141,
1146 (Kan. 1997) (internal citation omitted). “Except where the lack of reasonable care or the
existence of proximate cause is apparent to the average layman from common knowledge or
experience, expert testimony is required in medical malpractice cases to establish the accepted
standard of care and to prove causation.” Id. (internal citations omitted). Here, it is
uncontroverted. Plaintiff has failed to disclose an expert witness who can provide testimony to
support his claim of negligence arising from Wisner’s treatment of him on May 1, 2014. See
Doc. 50-10 (Designations of Pl.’s Expert Witnesses). And his deadline to do so passed long ago.
Therefore, plaintiff cannot offer expert testimony about the applicable standard of care or prove
causation. For that reason, the United States is entitled to summary judgment against the
medical malpractice claim unless (1) the common knowledge exception applies, or (2) some
other reason frees plaintiff of the burden to support his claim with expert testimony.
Plaintiff offers arguments to support each alternative. First, plaintiff asks the court when
analyzing this claim to take judicial notice of its previous rulings, applicable findings of facts,
and testimony in related litigation. Doc. 57 at 33. Second, plaintiff suggests that defendant’s
own witnesses obviate the need to support his claim with expert testimony. Third, plaintiff

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argues that his case qualifies for the common knowledge exception. See id. at 39–40. The court
addresses each argument, in turn.
1. Whether Judicial Notice Relieves Plaintiff from the Requirement to
Produce Expert Testimony Supporting His Malpractice Claim
Plaintiff asks the court, when it addresses his claim, to take judicial notice of its previous
rulings, applicable findings of facts, and testimony in related litigation. Doc. 57 at 33.
Specifically, he urges the court to “take judicial notice of its Memorandum and Decision in Case
No. 16-CV-2627, 11/20/2020” including Conclusions of Law ¶¶ 36–37. Id. at 36.4 In Leininger,
these conclusions of law supported the court’s larger conclusion that plaintiff had established all
the elements of that plaintiff’s medical malpractice claim. See Leininger, 499 F. Supp. 3d at 994.
In ¶ 36, the court concluded:
Plaintiff presented evidence by way of expert testimony, establishing the standard
of care. Gloves were always required when conducting genital or rectal
examinations under the relevant standard of care. Genital and rectal examinations
were not required at every visit, and they typically should take 30 to 60 seconds.
Wisner, as a PA, had a duty to comply with this standard of care.
Id. And then in ¶ 37, the court concluded:
Plaintiff presented evidence showing that Wisner breached that standard of care.
Specifically, every time Wisner conducted a genital examination without using
gloves, he violated the standard of care. He also conducted a number of genital
examinations that were unnecessary. Also, each of the genital exams lasted longer
than appropriate under the standard of care.
Id. Here, in sum, plaintiff asserts that he doesn’t need to produce expert testimony specific to
him because another plaintiff who brought a similar claim against the same defendants already
has produced that evidence, and the court reached a legal conclusion based on that evidence.

4

The court issued no Order or Notice in Case No. 16-2627 on November 20, 2020. The court
construes this citation as referring to the court’s November 2, 2020 Memorandum of Decision under Rule
52(a) (Doc. 162) in that case. See Leininger v. United States, 499 F. Supp. 3d 973, 994 (D. Kan. 2020).

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The United States rejects plaintiff’s argument about judicial notice, asserting that
plaintiff’s “pleas for judicial notice do not reflect a legitimate use of Federal Rule of Evidence
201.” Doc. 62 at 27. The government asserts that plaintiff’s call for judicial notice suffers two
weaknesses. First, that the materials plaintiff asks the court to consider “shed no light on
Wisner’s care and treatment on May 1, 2014 of this specific Plaintiff[.]” Id. at 28. Second,
“there is no support in Plaintiff’s Opposition from any case, statute, or Federal Rule [allowing]
for the wholesale incorporation of other cases and decisions as a proxy for a different plaintiff’s
proof.” Id. The government contrasts (1) the legal conclusions that plaintiff asks the court to
take notice of, with (2) materials properly subject to judicial notice—“‘certain facts, which from
their nature are not properly the subject of testimony, or which are universally regarded as
established by common knowledge.’” Id. (quoting Meredith v. Beech Aircraft Corp., 18 F.3d
890, 895 (10th Cir. 1994) (citing Fed. R. Evid. 201)).
Plaintiff’s arguments fail to persuade the court that earlier conclusions of law about duty
and breach taken from a previous medical malpractice trial based on evidence introduced in that
trial are facts appropriate for judicial notice here. See Fed. R. Evid. 201(a). Our Circuit has
reasoned similarly when denying a litigant’s attempt to harness judicial notice. See Meredith, 18
F.3d at 895 (noting that “recognition of certain facts by the judge is proper without proof because
such facts are not subject to reasonable dispute[,]” and concluding that judicial notice would be
improper where the fact at issue “is not this kind of universal truth” but rather “a fact that must
be established through the presentation of evidence[,]” as well as “disputed by [one party]”).
Also, a Kansas court has rejected a plaintiff’s analogous argument seeking to invoke state law
judicial notice rules to support an element of his medical malpractice claim. See McEachern v.
Morris, No. 117,253, 421 P.3d 773, 2018 WL 910935, at *9 (Kan. Ct. App. Feb. 16, 2018)

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(denying plaintiff’s request for judicial notice of facts “not widely known by a layperson within
the territorial jurisdiction of the court” because “the [Kansas] judicial notice statute is not
intended to establish a key element in a negligence claim, and [plaintiff] does not cite any
authority supporting its use in this way”).5
Judicial notice cannot plug the gaps left by plaintiff’s failure to secure expert testimony
supporting certain elements of his medical malpractice claim. The court thus rejects this
argument and turns to plaintiff’s alternative reasons why the state law requirement doesn’t apply
to his medical malpractice negligence claim—that he can rely on testimony of defendant’s
witnesses, and that the common knowledge exception applies to his malpractice claim.
2. Whether Plaintiff Need Not Produce Expert Testimony Because
Defendant’s Witnesses and Experts Testified that Defendant was
Negligent
Plaintiff next suggests that no expert witness is required to support his negligence claim
because he “does not believe such an expert is unnecessary based upon the facts of this case,
including but not limited to Defendant’s own testimony.” Doc. 57 at 13 (¶ 35) (citing Doc. 57-4
at 30 (Cline Dep. 244:2–24)); see also Doc. 57 at 40–41 (citing Doc. 57 at 13 (¶ 37)). Plaintiff
cites no authority to support this argument. Moreover, even if plaintiff could rely on defendant’s
witnesses to show breach of the standard of care, plaintiff fails to explain how that testimony can

5

Plaintiff’s call for the court to rely on Leininger looks more like an attempt to employ offensive
collateral estoppel than it does judicial notice. “Under the doctrine of issue preclusion, a prior judgment
forecloses successive litigation of an issue of fact or law actually litigated and resolved in a valid court
determination essential to the prior judgment.” Herrera v. Wyoming, 139 S. Ct. 1686, 1697 (2019)
(cleaned up). But plaintiff fails to assert an explicit collateral estoppel theory or explain why he could
invoke that theory against the United States. See United States v. Carter, 995 F.3d 1222, 1226 (10th Cir.
2021) (citing United States v. Mendoza, 464 U.S. 154, 162 (1984) (noting that “nonmutual offensive
collateral estoppel simply does not apply against the government in such a way as to preclude relitigation
of issues”)).

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replace expert testimony showing that the breach caused plaintiff’s injuries. See id. The court
rejects this argument.
Next, the court considers plaintiff’s argument that the common knowledge exception
applies here.
3. Whether the Common Knowledge Exception to the Expert Testimony
Requirement Applies Here
Plaintiff argues that he need not produce expert testimony to support his negligence claim
because an exception to that requirement applies here. Doc. 57 at 39–40. The government
disagrees. Doc. 62 at 29–31. The court briefly explains this exception, and then decides whether
it applies here.
As already noted, under Kansas law, a “plaintiff in a medical malpractice case bears the
burden of showing not only the doctor’s negligence, but that the negligence caused the injury.”
Hare, 949 P.2d at 1146 (internal citation omitted). “Except where the lack of reasonable care or
the existence of proximate cause is apparent to the average layman from common knowledge or
experience, expert testimony is required in medical malpractice cases to establish the accepted
standard of care and to prove causation.” Id. (internal citations omitted). This common
knowledge exception applies only when “the lack of reasonable care or the existence of
causation is apparent to the average layman from common knowledge or experience.” Watkins
v. McAllister, 59 P.3d 1021, 1023 (Kan. Ct. App. 2002) (citing Hare, 949 P.2d at 1146).
Whether the exception applies is a question of law for the court to decide. Perkins v. Susan B.
Allen Mem’l Hosp., 146 P.3d 1102, 1105 (Kan. Ct. App. 2006). The “application of the common
knowledge exception is extremely limited” and, most often, applies to cases where a physician
leaves a sponge or surgical instrument inside the patient after surgery. Munoz v. Clark, 199 P.3d
1283, 1288 (Kan. Ct. App. 2009); Schwartz v. Abay, 995 P.2d 878, 880 (Kan. Ct. App. 1999).
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a. Whether the Common Knowledge Exception Applies Because Breach
of the Standard of Care is Apparent to the Lay Juror
Plaintiff asserts that he has adduced evidence showing that Wisner’s care was patently
bad, making Wisner’s deviation from the standard of care apparent to the lay juror without expert
involvement. The court disagrees. The summary judgment facts about what happened during
plaintiff’s VAMC visit with Wisner do not make the lack of reasonable care apparent to the
average lay juror armed only with common knowledge or experience. Questions about the
standard of care for patients presenting with possible prostatitis fall well outside common
knowledge. Wisner’s May 1, 2014 conduct itself—as the summary judgment facts describe it—
is not medical malpractice so obvious that no expert witness is needed. The common knowledge
exception doesn’t apply cleanly to the breach issue here.
Yet plaintiff emphasizes that Wisner was convicted criminally as a “direct result of his
May 1, 2014 ‘prostate exam[.]’” Id. at 39–40. The parties stipulate that “Wisner was charged
with criminal sodomy as a result of his actions towards Plaintiff on May 1, 2014 and was found
guilty of that crime.” Doc. 48 at 6 (Pretrial Order. ¶ 2.a.36.) (citing K.J. Dep. 57:8–23 (Nov. 19,
2019)). The court thus considers whether the stipulated fact of Wisner’s criminal conviction for
criminal sodomy of this plaintiff makes apparent Wisner’s breach of the standard of care for
purposes of the common knowledge exception, or otherwise discharges plaintiff’s burden to
produce expert testimony showing breach.
Under Kansas law, “sodomy” includes, among other things, “anal penetration, however
slight, of a male or female by any body part or object[.]” Kan. Stat. Ann. § 21-5501(b). But the
statutory definition of “sodomy” excludes “penetration of the anal opening by a finger or object
in the course of the performance of: (1) Generally recognized health care practices[.]” Kan.
Stat. Ann. § 21-5501(b)(1). So, plaintiff has adduced evidence capable of establishing that
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Wisner, based on his treatment of plaintiff on May 1, 2014, was convicted of criminal sodomy
involving “sodomy” other than penetration of the anal opening by a finger or object in the course
of the performance of generally recognized health care practices. Assuming “[g]enerally
recognized health care practices” include practices comprising the standard of care relevant here,
the fact of Wisner’s conviction based on his treatment of plaintiff (viewed in the light most
favorable to plaintiff, as non-movant) suggests that Wisner’s treatment of plaintiff breached the
standard of care—whatever that standard might be.
Plaintiff asserts that this means the common knowledge exception spares him from the
burden to submit expert testimony to establish breach of the standard of care. The court
construes plaintiff’s argument to assert that the parties’ Pretrial Order stipulates facts that,
viewed in the non-movant plaintiff’s favor, establish Wisner’s actions on May 1, 2014, involved
conduct beyond generally recognized health care practices. Thus, plaintiff argues that Wisner’s
actions fall outside the standard of care such that plaintiff need not produce an expert witness to
show that Wisner’s treatment of plaintiff deviated from the standard of care. This court is not so
sure. Kansas law treats the common knowledge exception as “extremely limited[,]” and the
peculiar factual circumstance here differs from cases holding that the exception applies. Munoz,
199 P.3d at 1288. And plaintiff fails to provide any authority supporting the assertion that
violating a criminal statute can support the common knowledge exception. See Doc. 57 at 41–
42. Moreover, even if the court accepts plaintiff’s reasoning why that exception spares him the
need to secure expert testimony showing breach of the standard of care, a crucial question about
causation would remain: Whether the absence of expert testimony showing Wisner’s breach
caused plaintiff’s harms precludes plaintiff’s medical malpractice claims. The next subsection
tackles that question.

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b. Whether the Common Knowledge Exception Applies Because
Causation is Apparent to the Lay Juror
Plaintiff argues that this case triggers the common law exception allowing him to show
causation without expert testimony. Doc. 57 at 39. He asserts that a fact finder needs no expert
witness to explain that a medical provider who inserts something into plaintiff’s rectum causes
that plaintiff pain and distress. Id. at 42. He asserts that it “is within the common knowledge
and experience of the general public that rape, or criminal sodomy during a medical exam results
in injury to the patient.” Id. The United States rejects plaintiff’s application of the common
knowledge exception. The government asserts that “[t]reatment and care of the prostate is not
within the common knowledge of most fact finders[,]” and an “expert would be able to testify as
to the proper care and treatment of Plaintiff’s prostatitis that are beyond the scope of knowledge
of the typical lay person.” Doc. 62 at 30.
Plaintiff’s reliance on Wisner’s conviction when arguing that plaintiff doesn’t need
expert testimony to establish breach leaves open questions about causation. See McEachern,
2018 WL 910935, at *10 (noting in analogous medical malpractice context that “relying on the
statute” to establish negligence per se “does not obviate the need to provide expert medical
testimony on the issue of causation”). Plaintiff asserts that the criminal sodomy conviction itself
makes causation apparent. Doc. 57 at 42. But plaintiff’s method of asserting breach via
Wisner’s criminal sodomy conviction leaves too undefined which portions of Wisner’s treatment
of plaintiff were tortious. The stipulated fact of Wisner’s conviction establishes that “sodomy”
under Kan. Stat. Ann. § 21-5501(b)(1) occurred, and thus the conduct fell outside the statutory
medical care exclusion. But even if the parties’ stipulations establish a breach of the standard of
care, it’s unclear which portion of Wisner’s examination of plaintiff breached the standard of
care. With the breach unknown, the court cannot conclude that the average lay juror would find
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it apparent that Wisner’s breach proximately caused plaintiff’s injuries. The common knowledge
exception thus cannot apply to plaintiff’s medical malpractice claim. Expert testimony is
required, but plaintiff has provided none. This conclusion means that the United States is
entitled to summary judgment against the medical malpractice claim.
C.

Whether Plaintiff’s Failure to Support his Medical Malpractice Claim with
Expert Testimony Forecloses His Vicarious Liability Claim Based on
Wisner’s Malpractice

Next, the court considers whether concluding that defendant deserves summary judgment
against plaintiff’s medical malpractice claim resolves any of plaintiff’s other claims. Defendant
argues that “because all of Plaintiff’s remaining claims stem from Wisner’s actions during a May
1, 2014 visit with Plaintiff, they too fail for lack of expert proof.” Doc. 50 at 1.
Plaintiff brings several claims against the United States, alleging both vicarious and
direct liability. See Doc. 48 at 27–29 (Pretrial Order ¶ 4.a.). Plaintiff asserts that the government
is vicariously liable for, among other things, Wisner’s negligent acts. Id. But vicarious liability
requires an underlying tort. See Bair v. Peck, 811 P.2d 1176, 1178, Syl. ¶¶ 2–3 (Kan. 1991).
Here, plaintiff cannot rest his vicarious liability claim on Wisner’s negligence when, for reasons
the court has discussed in preceding pages, the law precludes that underlying negligence claim.
The United States thus deserves summary judgment against plaintiff’s vicarious liability claim
based on Wisner’s negligence.
The court thus turns to plaintiff’s alternative claims against the United States: Outrage
and vicarious liability based on Wisner’s acts constituting outrage, and negligent supervision of
Wisner. See id. at 28–29. This analysis begins with the negligent supervision claim.

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D.

Whether the United States Deserves Summary Judgment Against Plaintiff’s
Negligent Supervision Claim

The parties dispute whether the FTCA’s discretionary function exception applies to
plaintiff’s negligent supervision claim. “The discretionary-function exception to the FTCA
excludes the government from liability for ‘[a]ny claim . . . based upon the exercise or
performance or the failure to exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether or not the discretion involved be
abused.’” Ohlsen, 998 F.3d at 1160 (quoting 28 U.S.C. § 2680(a)). “This discretionary function
exception poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as
part of his overall burden to establish subject matter jurisdiction.” Id. (citation and internal
quotation marks omitted).
Here, the parties agree that Berkovitz v. United States, 486 U.S. 531 (1988) governs the
question. In Berkovitz, “the Supreme Court announced a two-part test for determining whether a
challenged action falls within the scope of the discretionary function exception.” Sydnes v.
United States, 523 F.3d 1179, 1183 (10th Cir. 2008) (Gorsuch, J.). “At the first stage, a court
must consider whether the action is a matter of choice for the acting employee. If the action does
involve such choice, [the court] must then consider whether the type of action at issue is
susceptible to policy analysis.” Id. “If both of these conditions are met, the discretionary
function exception applies and [the] sovereign immunity doctrine precludes suit. If, however,
plaintiffs can show that either prong is not met, then the exception does not apply and a claim
may proceed.” Id.
1. Whether the Action is a Matter of Choice for the Acting Employee
The parties agree that a federal law, regulation, or policy mandated certain conduct here.
See Doc. 57 at 59–61 (Pl.’s Resp.) (discussing VHA Dir. 1063); Doc. 62 at 40–42 (Def.’s Reply)
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(same).6 The parties’ discussion of the mandates in VHA Directive 1063 centers on just a few
provisions. In relevant part, this Directive provides:
The collaborating physician’s oversight responsibilities for this level of PA practice
include periodic monitoring of the PA’s clinical activities through a retrospective
review of at least five randomly selected patient encounter notes each quarter to
ensure the presence of ongoing competency and medical appropriateness. In
addition, the collaborating physician and PA will be in contact at least weekly to
discuss any difficult or unusual clinical management issues.
Doc. 50-2 at 11 (¶ 3.a.). The parties further agree that defendant’s employees may have failed to
comply with the directive’s non-discretionary requirements.
But disagreement erupts when the question turns to causation. “To circumvent the
discretionary function exception, the mandatory duty alleged must be one whose breach bears a
causal relationship to the Plaintiffs’ injuries, thereby giving rise to their cause of action against
the government.” See Clark v. United States, 695 F. App’x 378, 386 (10th Cir. 2017) (citing
Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1132–33 (10th Cir. 1999)). Defendant
asserts that plaintiff fails to show that the government violating VHA Directive 1063 caused
plaintiff’s alleged harm. See Doc. 50 at 31–36; Doc. 62 at 40, 42. Plaintiff suggests that
causation is clear, denying any “disconnect between the failures of the VA to follow Directive
[1063] and the injury and harm to Plaintiff.” Doc. 57 at 63. He reasons that “[b]ased upon the
evidence, and the reasonable inferences that can be drawn from the evidence, the failure of VA

6

Plaintiff’s discussion of Kansas law does not support his arguments about the discretionary
function exception. See Sydnes v. United States, 523 F.3d 1179, 1184 (10th Cir. 2008) (Gorsuch, J.) (“To
overcome the discretionary function exception and thus have a chance of establishing a waiver of
sovereign immunity, plaintiffs must show that the federal employee’s discretion was limited by a federal
statute, regulation, or policy; after all, states can’t waive the federal government’s immunity.” (citation
and internal quotation marks omitted)). In other cases, our court has rejected similar arguments to invoke
state law to supply the limitation on discretion. See, e.g., Doe A.I. v. United States, No. 16-2627, 2020
WL 59861, at *7 (D. Kan. Jan. 6, 2020) (“[P]laintiff argues that the Kansas Physician Assistant Licensure
Act provides non-discretionary duties. Again, the court already rejected this argument, as the duties must
be federal—not state.”).

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personnel to properly supervise Mr. Wisner caused the damage to Plaintiff.” Id. at 63–64.
Defendant replies that plaintiff “fails to show any facts in the record to support this conclusory
assertion[,]” and argues that plaintiff asks the court to draw improper inferences. Doc. 62 at 42
& n.12.
The particular causation defect that defendant highlights has precluded other plaintiffs
from overcoming the discretionary function exception. Related FTCA litigation in our court
stemming from Wisner’s conduct has presented a nearly identical legal issue, i.e., whether VA
employees failing to take non-discretionary actions that VHA Directive 1063 prescribes caused
plaintiff-patient’s harm sustained from Wisner. See Doe A.I. v. United States, No. 16-2627, 2020
WL 59861, at *6–7 (D. Kan. Jan. 6, 2020) (concluding “there is no genuine issue of material fact
whether the non-discretionary conduct caused plaintiff’s harm” and the “first step of Berkovitz is
therefore not met”). As our court explained in that case: “Wisner’s supervisor may not have
followed the directives to have weekly contact with Wisner and review five patient encounter
notes quarterly. But any action taken with respect to problems potentially discovered as a result
was discretionary.” Id. at *6 (first citing Clark, 695 F. App’x at 386; then citing Mahon v.
United States, 742 F.3d 11, 15 (1st Cir. 2014); then citing Gen. Dynamics Corp. v. United States,
139 F.3d 1280, 1285–86 (9th Cir. 1998)). Doe A.I. reasoned that “it is improper for plaintiff to
attempt to isolate the non-discretionary duties (which lack direct causation) from the
discretionary duties (for which there is evidence of causation).” Id. (first citing Johnson v. U.S.,
Dep’t of Interior, 949 F.2d 332, 339 (10th Cir. 1991); then citing Hardscrabble Ranch, L.L.C. v.
United States, 840 F.3d 1216, 1222 (10th Cir. 2016)).
The same is true here. Plaintiff fails to adduce any evidence capable of illuminating a
causal relationship between (1) the breach of the mandatory duty under VHA Directive 1063,

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and (2) plaintiff’s injuries. Plaintiff’s argument overlooks the discretionary nature of decisions
that the government’s compliance with VHA Directive 1063 would have produced. As the
United States correctly asserts, plaintiff fails “to identify any federal statute, regulation, or policy
dictating a specific course of action to be taken upon discovering deficiencies in Wisner’s
performance.” Doc. 62 at 43. Plaintiff cannot bridge the causal gap through speculative
inferences based on unspecified evidence. Boyer v. Bd. of Cnty. Comm’rs of Cnty. of Johnson
Cnty., 922 F. Supp. 476, 484 (D. Kan. 1996), aff’d sub nom. Boyer v. Johnson Cnty. Bd. of Cnty.
Comm’rs, 108 F.3d 1388 (10th Cir. 1997). Plaintiff asserts that “had VA personnel properly
supervised Mr. Wisner—including the required audits of treatment records (including the
prescribing of opioid medications) and the required weekly contacts—Plaintiff would not have
been subjected to the inappropriate medical care he received.” Doc. 57 at 54. No reasonable fact
finder could adopt that view based on the evidence assembled by the plaintiff.
Plaintiff fails to show that the government conduct was not a matter of choice for the
acting employee. And since the conduct here involved judgment or choice, the court proceeds to
the second stage of analysis under Berkovitz.
2. Whether the Type of Action at Issue is Susceptible to Policy Analysis
The court considers whether the judgment at issue here is the kind of decision that the
discretionary function exception is meant to shield. Sydnes, 523 F.3d at 1185. Our court has
explained its pattern of holding that “personnel decisions such as employee discipline are the
type of policy judgments intended to be addressed by the discretionary function exception.” Doe
A.I., 2020 WL 59861, at *7 (citing Anasazi v. United States, No. 16-2227, 2017 WL 2264441, at
*8 (D. Kan. May 23, 2017)); see also Sydnes, 523 F.3d at 1185–86 (noting that the Tenth Circuit
has “previously and unqualifiedly held that decisions regarding employment and termination . . .

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are precisely the types of administrative action the discretionary function exception seeks to
shield” (cleaned up)).
Here, the relevant supervisory decisions involve a federal agency’s decision about what
to do about an employee’s possible misconduct. The decisions whether, and how to respond to
VHA 1063-induced discoveries about Wisner ultimately are personnel decisions involving
employment and employee discipline of a type that fall squarely behind the shield of the
discretionary function exception. See Sydnes, 523 F.3d at 1186–87. Plaintiff has not discharged
his burden to establish otherwise. The discretionary function exception to the FTCA thus bars
plaintiff’s negligent supervision claim and entitles the United States to summary judgment
against this claim.
Finally, this leaves plaintiff’s intentional tort claim. The court now turns to that claim
and the arguments that the United States has deployed against it.
E.

Whether the United States Deserves Summary Judgment Against Plaintiff’s
Outrage Claims

The FTCA does not waive the Federal Government’s sovereign immunity for claims
arising out of various intentional torts. See 28 U.S.C. § 2680(h) (exempting from FTCA waiver
various claims arising out intentional torts). But if § 2680(h) is the exception to the waiver of
immunity, an exception to the exception also exists. A federal statute allows a remedy against
the United States under the FTCA for damages arising from providing 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) (“[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).”) (citation and internal quotation marks omitted). This VA Immunity
Statute provides:
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The exception provided in section 2680(h) of title 28 shall not apply to any claim
arising out of a negligent or wrongful act or omission of any person described in
subsection (a) in furnishing medical care or treatment (including medical care or
treatment furnished in the course of a clinical study or investigation) while in the
exercise of such person’s duties in or for the Administration.
38 U.S.C. § 7316(f).
Our Circuit has explained the rationale behind this statute: “In some instances, State law
characterize[d] an act of medical malpractice as an intentional tort, leaving VA medical
personnel potentially liable for an action for which the law intends the Government to assume
liability.” Franklin v. United States, 992 F.2d 1492, 1500 (10th Cir. 1993) (quoting H.R. Rep.
No. 100-191, 100th Cong., 2d Sess. 19 (1988), reprinted in 1988 U.S.C.C.A.N. 432, 450). The
plain language of this exception-to-the-exception statute, however, does not confine the statute’s
waiver to claims of medical battery:
Although Congress was specifically concerned with medical battery, the remedy
available under § 7316(f) is not limited to battery. Instead, by rendering 28 U.S.C.
§ 2680(h) inapplicable, § 7316(f) allows the United States to be sued for “assault,
battery, false imprisonment, false arrest, malicious prosecution, abuse of process,
libel, slander, misrepresentation, deceit, or interference with contract rights,” . . . .
Thus, in the context of VA health care employees providing medical care or
treatment, § 7316(f) provides a remedy under the FTCA for claims of intentional
torts, including false arrest and false imprisonment.
Ingram, 728 F.3d at 1249. To apply, § 7316(f) requires only that VA personnel commit an
intentional tort “in furnishing medical care or treatment[.]” 38 U.S.C. § 7316(f). The United
States emphasizes that the question whether § 7316(f) applies is distinct from whether the VA
personnel was acting within the scope of employment. Doc. 62 at 37–38.
Here, the government asserts, § 7316(f) does not apply to Wisner’s conduct because he
did not commit the alleged wrongful act while furnishing medical care or treatment. To support
this argument, the United States relies on an unpublished Eleventh Circuit opinion: Knezevich v.
Carter, 805 F. App’x 717 (11th Cir. 2020). See Doc. 62 at 39. In Knezevich, the plaintiff
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brought a defamation claim against his VA doctor because, while discussing a surgical procedure
with the plaintiff, the VA doctor yelled into the hallway that the plaintiff was threatening him. A
nurse already had taken plaintiff’s vital signs, and the doctor had drawn the shape of an incision
on the plaintiff’s chest when the doctor’s outburst occurred. The Eleventh Circuit separated the
“harm-causing conduct”—the doctor’s hallway defamation—from the rest of the medical
appointment, noting that the checking of vital signs and drawing the incision’s shape were “not
what allegedly caused [the plaintiff] harm.” Knezevich, 805 F. App’x at 725.
The United States asserts that Wisner committed his “harm-causing conduct” during the
context of a medical procedure, but not while furnishing medical care or treatment. Doc. 62 at
39. The government reasons that sexually molesting a patient is not “furnishing medical care or
treatment[,]” and the harm-causing conduct here was Wisner sexually molesting plaintiff. So,
the VA reasons, its personnel did not engage in harm-causing conduct while furnishing medical
care or treatment. Id. This reasoning cannot secure summary judgment on this case’s facts. In
cases asking whether § 7316(f) applies to Wisner’s conduct during medical appointments, the
court previously has rejected the argument “that ‘sexual molestation’ can never qualify as
‘medical care or treatment.’” Leininger, 499 F. Supp. 3d at 992.
The court previously rejected the government’s assertion that Knezevich applied to
intentional torts arising out of a patient’s visit with Wisner. See id. The court distinguished
Knezevich, reasoning that the “tort alleged in Knezevich—defamation—had a distinct beginning
and end and was easily separated from the medical care provided by the doctor. In contrast, in
[Leininger], the edges of the boundary separating proper medical care from wrongful conduct are
far fuzzier.” Id. The court emphasized that the “lines between what was an intentional tort and

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what was not an intentional tort are much more muddled [in Leininger] than in Knezevich[,]” and
thus concluded that “the rationale of Knezevich does not apply to” Leininger. Id.
Here, the government objects to the court’s earlier analysis of Knezevich in related
litigation but argues in any event that the facts here differ from those earlier cases. The United
States emphasizes the absence of expert testimony here about (a) whether any of that treatment
constituted proper medical care and (b) the location of the line separating medical care from
wrongful conduct. See Doc. 62 at 39. The United States fails to persuade the court that this
absence of expert testimony necessarily forecloses plaintiff’s outrage claim.
The parties stipulate that “[a]t least some portions of the medical care Mark E. Wisner
provided Plaintiff was for a valid medical purpose in order to provide diagnostic care.” Doc. 48
at 4 (Pretrial Order ¶ 2.a.19.). It is undisputed that plaintiff testified previous prostate exams
involved a medical professional inserting something in his anus to palpate his prostate. See Doc.
57-21 at 4 (Trial Tr. 79). And it is undisputed that plaintiff testified that Wisner inserted
something in his anus during the May 1, 2014 visit for treatment of plaintiff’s prostate. Id. at 3
(Trial Tr. 78).
Given these undisputed summary judgment facts, the lines demarcating furnishment of
medical care from harm-causing conduct are harder to identify than the tidy factual scenario
presented in Knezevich. Even if Knezevich correctly approaches the issue whether a wrongful
act arises from furnishing medical care, this case’s far messier facts—when viewed in the light
most favorable to plaintiff—complicate any attempt to apply Knezevich to wrongful acts not
“easily separable from any medical care provided by the doctor.” See Leininger, 499 F. Supp. 3d
at 992 (distinguishing Knezevich). Here, a reasonable fact finder could conclude that the alleged
intentional tort arises from Wisner furnishing medical care or treatment.

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Our court reached similar conclusions in related litigation when ruling on the
government’s arguments for summary judgment based on § 7316(f). See, e.g., Doe S.B. v.
United States, No. 16-2575, 2020 WL 59646, at *4 (D. Kan. Jan. 6, 2020) (holding that the
question whether “Wisner’s improper actions were not taken in the context of delivering medical
care or treatment” under 38 U.S.C. § 7316(f) is “reserved for the court as the trier of fact”
because “there remains a gray area around what actions constituted providing medical care and
what actions were entirely unnecessary and improper”). Here, too, the court cannot conclude as
a matter of law that the United States is immune from plaintiff’s outrage claim. The government
thus cannot secure summary judgment against that claim. It must proceed to trial.
IV.

Conclusion
The United States seeks summary judgment against each of plaintiff’s claims against it.

Plaintiff unsuccessfully struggles to overcome his failure to support his negligence claim for
medical malpractice with expert testimony. He cannot establish the underlying tort liability
necessary to pursue a vicarious liability theory against the United States based on negligence.
The government deserves summary judgment against plaintiff’s medical malpractice claims.
The United States also deserves summary judgment against plaintiff’s negligent
supervision claim. The discretionary function exception applies to that theory of liability. So,
the Federal Government has not waived its sovereign immunity against that claim. The court
thus lacks subject matter jurisdiction over the negligent supervision claim. The court dismisses
the claim for lack of subject matter jurisdiction under 28 U.S.C. § 2680(a).
But the United States cannot secure summary judgment against plaintiff’s claim for
outrage. A triable issue remains for the finder of fact: Whether Wisner’s alleged wrongful act

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arises from the furnishing of medical care or treatment for purposes of 38 U.S.C. § 7316(f).
Summary judgment against the intentional tort claim thus is out of reach.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s Motion for
Summary Judgment (Doc. 49) is granted in part and denied in part, consistent with this Order.
IT IS SO ORDERED.
Dated this 17th day of August, 2021, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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