Andrews v. U.S.

Decision Date10 July 1984
Docket NumberNo. 82-2133,82-2133
Citation732 F.2d 366
PartiesSandra B. ANDREWS and Kenneth M. Andrews, Appellees, v. UNITED STATES of America, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

J. Weili Cheng, Dept. of Justice, Washington, D.C. (J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., Henry Dargan McMaster, U.S. Atty., Columbia, S.C., Robert S. Greenspan, Dept. of Justice, Washington, D.C., on brief), for appellant.

Nicolas C. Lempesis, Charleston, S.C., for appellees.

Before WIDENER and ERVIN, Circuit Judges, and HOFFMAN *, District Judge.

ERVIN, Circuit Judge:

The United States appeals from a judgment awarding damages to Sandra and Kenneth Andrews for mental distress caused by the medical malpractice of government employees. The government argues that the district court lacked jurisdiction under the Federal Tort Claims Act 1 to hear the Andrews' case. We are not persuaded by the government's arguments and, accordingly, affirm the decision in Andrews v. United States, 548 F.Supp. 603 (D.S.C.1982).


Kenneth Andrews was an officer aboard the U.S.S. PRATT, home quartered at the Naval Base, Charleston, South Carolina, from mid-1976 through June, 1978. During this two year period he and his wife, Sandra Andrews, were patients at the Naval Weapons Station Branch Clinic in Charleston. On January 12, 1978, Mrs. Andrews went to the clinic for treatment of acute sinusitus. She was treated by a physician's assistant, Warrant Officer Travis L. Gee. Gee noted that Mrs. Andrews appeared depressed and recommended that she return for counseling.

Gee had received national certification as a Physician's Assistant in 1976. His psychiatric training included counseling experience, psychology courses, and an 18-month assignment on a psychiatric ward. The Navy Physician's Assistant Guidelines permitted Gee to perform medical duties usually carried out by physicians such as the prescription of drugs. From the summer of 1977 through June of 1978, Gee was supervised by the officer in charge of the clinic, Dr. David S. Frost, and by two other treating physicians assigned to the clinic, Dr. Michael Coates and Dr. Vince Ober.

When Mrs. Andrews returned to the clinic on January 17, 1978, Gee diagnosed her as having chronic depression with multiple somatic complaints, and he prescribed an anti-depressant, Elavil. Gee, however soon exceeded the bounds of the Hippocratic oath. 2 Between January 17 through June 17, 1978, Gee made sexual advances toward Mrs. Andrews during counseling sessions. Specifically, he told his patient that "she needed an affair" and that he was available to have an affair with her. The district court found that "under the guise of treatment," Gee began touching and kissing Mrs. Andrews and tried to remove her clothes on several occasions. Towards the end of this period of treatment, Gee finally succeeded in engaging Mrs. Andrews in sexual intercourse. The district court specifically found "that Mrs. Andrews was convinced by Gee that the best course of treatment for her was to engage in sexual intercourse with him." 548 F.Supp. at 609.

In March or April of 1978, Dr. Frost received a complaint about Gee from one of his patients, Marie Lewis. Lewis informed Dr. Frost that Gee had engaged in sexual improprieties with Mrs. Andrews. Dr. Frost confronted Gee with these allegations, but when Gee denied them, Frost pursued the matter no further. Gee's other immediate supervisor, Dr. Coates, did not learn of the allegations against Gee until a year later. Coates testified that had a complaint been made to him, he would have confronted the accuser, spoken with the patient, and spoken with the physician's assistant. The district court specifically found that:

... had proper supervision been formulated once the allegations of sexual intimacies and improprieties were made to Gee's supervisors, these matters would have been properly and promptly investigated and in all likelihood would have terminated the counselling relationship between Gee and Mrs. Andrews and would have averted the subsequent sexual intercourse and irreparable emotional harm being caused to both plaintiffs in this action.

548 F.Supp. at 609.

Following Gee's abusive course of therapy, Mrs. Andrews suffered severe depression and confusion about self-worth. She revealed Gee's conduct to her husband and blamed it for the break-up of their marriage. This in turn caused her husband severe depression. After a bench trial, the district court awarded Sandra and Kenneth Andrews damages in the amount of $70,000 and $30,000 respectively. On appeal, the government argues that the district court erred in its findings of fact and in its legal conclusions. Specifically, the government argues that Gee's promises of therapy were not the inducement for Mrs. Andrews' sexual encounters with him. Consequently, it contends first that this suit arose from conduct outside the scope of government employment and therefore is not actionable under the Federal Tort Claims Act, and second that it arose from an assault and battery for which sovereign immunity has not been waived.


The United States contests only one specific finding of fact--"that Mrs. Andrews was convinced by Gee that the best course of treatment for her was to engage in sexual intercourse with him." Under Fed.R.Civ.P. 52(a), "[f]indings of fact shall not be set aside unless clearly erroneous...." The Supreme Court instructs that "[a] finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). We conclude that testimony at trial supports the district court's finding, and our review of the entire record leaves us without the "firm conviction that a mistake has been committed."

Mrs. Andrews testified that she was afraid to tell anyone about Gee's sexual advances because Gee had said he could not continue therapy if she did. Mrs. Andrews' only confidant, Joyce Thompson, testified about Mrs. Andrews' confused dependency on Gee at this time. 3 After learning of Gee's unwarranted advances, Thompson advised Mrs. Andrews not to continue seeing him. Mrs. Andrews, who appeared "very confused" to Thompson, told Thompson that she believed in what Gee was doing and that she felt he was helping her. Mrs. Andrews experienced ambivalence about continuing treatment but she always returned because of her belief that Gee was helping her.

Mrs. Andrews' testimony concerning her final assignation with Gee also supports the district court's conclusion that Gee had succeeded in using the guise of therapy to engage a confused and dependent patient in sexual intercourse. 4 Nothing in Mrs. Andrews' testimony indicates that she did not consent to have intercourse with Gee. Rather, her testimony indicates that she felt a need for and sought Gee's counseling; that Gee used his position to create a situation in which she was vulnerable to his advances; and that Gee preyed on her vulnerability by engaging her in sex. The evidence taken as a whole strongly indicates that Mrs. Andrews believed sexual relations were necessary to continue her treatment. We conclude that it was not unreasonable for the district court to infer from this evidence that in Mrs. Andrews' confused state of mind, she believed that sexual relations were part of the "therapy" itself.


The Federal Tort Claims Act waives sovereign immunity by allowing the United States to be sued for money damages arising from personal injury

... 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. Sec. 1346(b).

The district court found that "Dr. Frost, Dr. Coates and Gee were all acting within the scope of their employment, and the plaintiffs herein were injured by the negligent acts of these agents of the defendant." 548 F.Supp. at 611. It is clear that Dr. Frost was acting within the scope of his employment at the time he negligently failed to exercise a reasonable degree of supervision. We do not agree, however, that Gee acted within the scope of government employment when he manipulated the physician-patient relationship to seduce Mrs. Andrews.

In South Carolina,

before a master is responsible for torts of his servant, the servant must not only be acting in the course of his employment, or within the scope of his authority, but must be actually engaged in his employer's business at the time of injury.

Porter v. United States, 128 F.Supp. 590, 595 (D.S.C.), aff'd, 228 F.2d 389 (4th Cir.1955) (interpreting South Carolina law). Nothing in the record suggests that Gee considered his sexual adventures to be a bona fide part of the therapy he was employed to provide. On the contrary, the government took the position at trial that Gee never had sexual relations with Mrs. Andrews. 5 Thus, it is clear that Gee was furthering his self-interest, not his employer's business, at the time he seduced his patient. Cf. Rabon v. Guardsmark, Inc., 571 F.2d 1277 (4th Cir.) cert. denied, 439 U.S. 866, 99 S.Ct. 191, 58 L.Ed.2d 176 (1978) (sexual assault by security guard while at work not within scope of guard's employment).

The fact that Gee was not acting within the scope of his employment during the time he inflicted emotional injuries on Mrs. Andrews, however, does not bar recovery. This is because the gravamen of the Andrews' claim is based on the supervising physicians' failure to exercise due care in discharging their duty to provide Mrs. Andrews with adequate medical care. Cf. ...

To continue reading

Request your trial
54 cases
  • Patterson v. Augat Wiring Systems, Inc.
    • United States
    • U.S. District Court — Middle District of Alabama
    • October 28, 1996
    ...Id. at 1211-12 & n. 3 (citing Joyner, 477 So.2d 364 (same); Doe v. United States, 769 F.2d 174 (4th Cir.1985) (same); Andrews v. United States, 732 F.2d 366 (4th Cir.1984) (same); Hoover v. University of Chicago Hosps., 51 Ill.App.3d 263, 9 Ill.Dec. 414, 366 N.E.2d 925 (1977) (same); and Gr......
  • Franklin v. U.S., 92-6056
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 5, 1993
    ...853 F.2d 398, 409-11 (6th Cir.1988); Lojuk, 706 F.2d at 1463; Andrews v. United States, 548 F.Supp. 603, 612 (D.S.C.1982), aff'd, 732 F.2d 366 (4th Cir.1984). But see Jordan v. United States, 740 F.Supp. 810, 813 (W.D.Okla.1990) (abrogation of § 2680(h) by § 1089(e) broadened personal immun......
  • Doe v. Durtschi
    • United States
    • Idaho Supreme Court
    • February 10, 1986 the assault and battery exception, even though plaintiff's claim was based on a theory of medical malpractice. Cf. Andrews v. United States, 732 F.2d 366 (4th Cir.1984) (action against government based on theory of malpractice not barred by FTCA's assault and battery exception in that un......
  • Bladen v. First Presbyterian Church of Sallisaw, 76870
    • United States
    • Oklahoma Supreme Court
    • July 20, 1993
    ...supervision for this type of malpractice of an employee and allowed claims under the theory of respondeat superior. Andrews v. United States, 732 F.2d 366, 371 (4th Cir.1984), (claim for negligent supervision against doctor for malpractice of Physician's Assistant); Cotton Kambly, 101 Mich.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT