Doe, N.G. v. United States of America et al
Filing
23
MEMORANDUM AND ORDER granting in part and denying in part 7 Motion to Dismiss for Lack of Jurisdiction. The motion is granted as to plaintiff's negligent hiring and retention claims in Count II, but denied as to plaintiff's negligent su pervision claim in Count II, as well as Counts I, III,and IV. Finally, some of plaintiff's claims may be time-barred, and to the extent that plaintiff intends to bring claims for negligent mis-prescription or over-prescription of medication, those claims are dismissed for failure to exhaust. Signed by District Judge Carlos Murguia on 4/9/2018. (ydm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN DOE N.G.,
Plaintiff,
v.
UNITED STATES OF AMERICA and
MARK WISNER,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Case No. 17-2493
MEMORANDUM AND ORDER
Plaintiff John Doe N.G. brings this case against defendants United States of America and Mark
Wisner, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 and 38 U.S.C.
§ 7316(a), (f), alleging that Wisner conducted improper and/or unnecessary physical examinations of
plaintiff and made inappropriate sexual comments. Plaintiff also alleges state law claims for battery
and outrage/intentional infliction of emotional distress. This matter is before the court on defendant
United States of America’s Motion to Dismiss (Doc. 7). Defendant argues that plaintiff’s complaint
should be dismissed for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). For the reasons set forth below, the court grants defendant’s motion in part and denies it in
part.
Plaintiff is a veteran who sought treatment at the Dwight D. Eisenhower VA Medical Center
(“VA”) located in Leavenworth, Kansas. Wisner treated and provided medical care for plaintiff.
Wisner was a physician’s assistant for the VA, and is a defendant in more than eighty pending civil
suits before this court.
-1-
The claims in this case are similar to claims in a number of other cases this court has
considered. See, e.g., Anasazi v. United States, No. 16-2227, 2017 WL 2264441, at *1–*2 (D. Kan.
May 23, 2017); Doe D. E. v. United States, No. 16-2162, 2017 WL 1908591, at *1–*2 (D. Kan. May
10, 2017). The court will not repeat the details of them here. Highly summarized, they are: (1) Count
I: Negligence - Medical Malpractice; (2) Count II: Negligent Supervision, Retention, and Hiring; (3)
Count III: Outrage/Intentional Infliction of Emotional Distress, and (4) Count IV: Battery.
Likewise, the court has set forth the governing legal standards in a number of other cases
involving the same parties and similar claims. The court does not repeat them here, but applies them
as it has in the past. See, e.g., Anasazi, 2017 WL 2264441, at *2; Doe D. E., 2017 WL 1908591, at *2.
Scope of Employment
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).
This court has repeatedly held that plaintiffs with similar allegations to those here have
sufficiently alleged that Wisner’s conduct was within the scope of his employment. See, e.g., Doe BF
v. United States, No. 17-2088, 2017 WL 4355577, at *4–*5 (D. Kan. Oct. 2, 2017); Almquist v. United
States, No. 17-2108, 2017 WL 4269902, at *4–*5 (D. Kan. Sept. 25, 2017); Anasazi, 2017 WL
2264441, at *4; Doe D. E., 2017 WL 1908591, at *4. The court also has held that plaintiffs with
similar allegations have presented plausible claims that the VA Immunity Statute applies, allowing
them to pursue remedies under the FTCA for claims arising out of a battery. See, e.g., Doe BF, 2017
-2-
WL 4355577, at *5; Almquist, 2017 WL 4269902, at *5; Anasazi, 2017 WL 2264441, at *5; Doe D. E.,
2017 WL 1908591, at *4. The court likewise allows plaintiff to proceed in this case.
Statute of Repose
Defendant claims that at least some of plaintiff’s claims are barred by Kansas’s four-year
statute of repose. See Kan. Stat. Ann. § 60-513(c) (stating that, with respect to a “cause of action
arising out of the rendering of or the failure to render professional services by a health care provider,”
“in no event shall such an action be commenced more than four years beyond the time of the act giving
rise to the cause of action”). Plaintiff disagrees, raising four arguments in opposition to defendant’s
position: (1) Section 60-513(c) does not apply to plaintiff’s claims because Wisner was not a “health
care provider”; (2) In any event, § 60-513(c) does not apply to plaintiff’s claims for outrage or battery;
(3) The FTCA’s administrative process tolls the statute of repose; and (4) Equitable estoppel tolls the
statute of repose.
The court has addressed all four of these arguments a number of times. First, Wisner was a
health care provider, making § 60-513(c) applicable. See, e.g., Doe BF, 2017 WL 4355577, at *2;
Almquist, 2017 WL 4269902, at *2. The court has considered plaintiff’s arguments about the
application of P.W.P. v. L.S., 969 P.2d 896 (1986), but remains unpersuaded that it erred in its initial
consideration of this issue. Second, § 60-513(c) applies to all of plaintiff’s claims, including outrage
and battery. See, e.g., Doe BF, 2017 WL 4355577, at *2; Almquist, 2017 WL 4269902, at *2. Third,
the FTCA administrative process tolls the statute of repose. See, e.g., Doe BF, 2017 WL 4355577, at
*3; Almquist, 2017 WL 4269902, at *3. And fourth, equitable estoppel does not further toll the statute
of repose. See, e.g., Doe BF, 2017 WL 4355577, at **3–*4; Almquist, 2017 WL 4269902, at *3–*4.
In this case, the impact of these rulings is that some of plaintiff’s claims may be barred by the
statute of repose. In his complaint, plaintiff alleges that he was Wisner’s patient and saw Wisner
-3-
during clinic visits on dates between 2011 and 2013. Taking these allegations as true, some of
plaintiff’s claims likely happened before September 26, 2012, which was four years before plaintiff
filed an administrative claim. Any such claims are therefore barred by the statute of repose.
Any Claims for Mis-Prescription or Over-Prescription of Medication
As defendant has done in many of these cases, defendant asks the court to dismiss any claims
for mis-prescription or over-prescription of medication, as such claims are not included in plaintiff’s
administrative claim and therefore are not exhausted. In other cases, the plaintiffs have clarified in
their response that they are not seeking to recover on a theory of mis-prescription or over-prescription
of medication. Plaintiff here did not respond to defendant’s argument. The court construes plaintiff’s
lack of response as an implicit indication that he does not seek to pursue such claims, making
defendant’s argument moot as it has been in other cases.
If plaintiff does intend to pursue such claims, however, they are subject to dismissal for failure
to exhaust. “[A]lthough a plaintiff’s administrative claim need not elaborate all possible causes of
action or theories of liability, it must provide notice of the facts and circumstances underlying the
plaintiff’s claims.” Trentadue, 397 F.3d at 853 (internal quotations omitted). Plaintiff did not claim
that Wisner’s misconduct included mis-prescribing or over-prescribing medication. The government
could have reasonably concluded that an investigation into Wisner’s prescription practices was
unnecessary. Cf. Lopez v. United States, 823 F.3d 970, 977 (10th Cir. 2016) (“Nothing in Lopez’s
administrative claim provided the government with notice that it needed to investigate whether the VA
Hospital was negligent in credentialing and privileging Kindt, and it was in turn deprived of any
opportunity to settle this potential claim without litigation.”). Plaintiff did not provide the government
with sufficient notice of this claim and failed to exhaust his administrative remedy on this matter.
-4-
Count II – Negligent Supervision, Hiring, and Retention
The court has previously dismissed other plaintiffs’ claims for negligent hiring and retention
based on the discretionary function exception to the FTCA. See, e.g., Doe BF, 2017 WL 4355577, at
*5–*6; Almquist, 2017 WL 4269902, at *5–*6; Anasazi, 2017 WL 2264441, at *8–*9; Doe D. E., 2017
WL 1908591, at *8. This outcome remains appropriate despite plaintiff’s request that the court
reconsider its rulings regarding VHA Handbook 1100.19.
As for the negligent supervision claim, the court has allowed this claim to proceed in the past.
See, e.g., Doe BF, 2017 WL 4355577, at *6; Almquist, 2017 WL 4269902, at *6; Anasazi, 2017 WL
2264441, at *7; Doe D. E., 2017 WL 1908591, at *6. For the reasons the court has set forth in other
related opinions, defendant’s motion is denied with respect to plaintiff’s claim for negligent
supervision.
Count III – Outrage/Intentional Infliction of Emotional Distress
Finally, the court has allowed plaintiffs to proceed with outrage claims in all of the cases
previously identified. See, e.g., Doe BF, 2017 WL 4355577, at *7; Almquist, 2017 WL 4269902, at
*7; Anasazi, 2017 WL 2264441, at *10; Doe D. E., 2017 WL 1908591, at *9–*10. Plaintiff has once
again placed his outrage claim outside the discretionary function exception.
-5-
IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Doc. 7) is granted in
part and denied in part. The motion is granted as to plaintiff’s negligent hiring and retention claims in
Count II, but denied as to plaintiff’s negligent supervision claim in Count II, as well as Counts I, III,
and IV. Finally, some of plaintiff’s claims may be time-barred, and to the extent that plaintiff intends
to bring claims for negligent mis-prescription or over-prescription of medication, those claims are
dismissed for failure to exhaust.
Dated this 9th day of April, 2018, at Kansas City, Kansas.
s/ Carlos Murguia____________
CARLOS MURGUIA
United States District Judge
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?