Focke v. United States

• Citation: 597 F. Supp. 1325
• Decision Date: 22 March 1982
• Docket Number: 79-4101.,No. 77-4121,77-4121
• Parties: Robert C. FOCKE, Executor of the Estate of Jerry P. Bent, deceased; Connie Lou Bent; and Cynthia Lou Bent, Plaintiffs, v. UNITED STATES of America, Defendant. Connie Lou BENT, Mother and natural guardian of Robert Paul Bent and Lisa Bent, Minor children; and Cynthia Lou Bent, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Kansas

597 F. Supp. 1325

Robert C. FOCKE, Executor of the Estate of Jerry P. Bent, deceased; Connie Lou Bent; and Cynthia Lou Bent, Plaintiffs, v. UNITED STATES of America, Defendant.

Connie Lou BENT, Mother and natural guardian of Robert Paul Bent and Lisa Bent, Minor children; and Cynthia Lou Bent, Plaintiffs, v. UNITED STATES of America, Defendant.

Nos. 77-4121, 79-4101.

United States District Court, D. Kansas.

March 22, 1982.

COPYRIGHT MATERIAL OMITTED

Gene E. Schroer, Topeka, Kan., for plaintiffs.

Jim J. Marquez, U.S. Atty., Mary K. Briscoe, Asst. U.S. Atty., Topeka, Kan., for defendant.

MEMORANDUM AND ORDER

ROGERS, District Judge.

These consolidated cases present claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. These cases were tried to the court, sitting without a jury, beginning on February 3, 1981. The court is now prepared to issue findings of fact and conclusions of law.

These cases arise from certain incidents that occurred at the Veterans Administration Hospital (hereinafter referred to as "V.A. Hospital") in Topeka, Kansas, during the years 1974 and 1975. On June 23, 1977, Jerry Bent, his wife, Connie Lou Bent and their daughter, Cynthia Lou Bent filed Case No. 77-4121. The complaint stated three causes of action—one on behalf of each of the plaintiffs. The essence of the complaint was that the defendants (Veterans Administration¹ and United States of America) had negligently hired, trained and supervised Theodore Gano, an employee of the V.A. Hospital, who had provided improper psychiatric services while plaintiff Jerry Bent was being treated there.² Jerry Bent committed suicide soon after the action was filed and the executor of his estate, Robert C. Focke, was substituted as a party plaintiff. Thereafter, plaintiffs sought to amend their complaint in two respects. First, plaintiffs sought to add a fourth cause of action—a claim for $5,000,000 in damages on behalf of Cynthia Bent for the death of her father. Second, whereas the original complaint complained of the hiring, training, supervision and performance of Theodore Gano, the proposed amended complaint made the same claims concerning Dr. German Puerta, another employee of the V.A. Hospital who handled Jerry Bent's case.

Subsequently, on May 24, 1979, plaintiffs filed another action, Case No. 79-4101. In this case, Connie Bent, on behalf of the Bent's minor children, Robert Paul and Lisa; and Cynthia Bent brought suit against the United States of America for the wrongful death of Jerry Bent and sought damages in the amount of $5,000,000. On August 23, 1979, we granted plaintiffs' motion to amend in Case No. 77-4121. Thereafter, we consolidated the two cases for trial.

Defendant has consistently contended from the outset of this action that the gravamen of plaintiffs' complaints are the sexual acts committed by Gano upon Connie and Cynthia Bent. Defendant asserts that absent the occurrences of these incidents, there would be no cause of action for plaintiffs to pursue. Accordingly, defendant has asserted that recovery under the Federal Tort Claims Act is barred for the following reasons. First, defendant argues that this court is without jurisdiction to consider these consolidated cases because they arise out of acts beyond the scope of the employment of the federal employees involved. Second, defendant asserts that these cases are barred because they fall within the battery and misrepresentation exceptions to the Federal Tort Claims Act. The defendant relied upon these arguments in a motion for summary judgment filed herein. In denying defendant's motion, we concluded:

Although the incidents of sexual conduct are certainly the most flagrant examples of misconduct by Ted Gano, and may very well be barred by the defenses especially the "scope of conduct" and "battery" defenses raised by defendant, the Court is inclined to agree with plaintiffs that this case may very well involve more than those claims. Plaintiffs have pleaded this case in such a manner as to stress claims of negligence and malpractice. They have argued the case by minimizing the incidents of sexual misconduct and emphasizing the lack of training and supervision of Gano and Puerta and other examples of alleged negligence. The Court believes that plaintiffs have framed the case as one primarily for negligence and malpractice and are entitled to present the case, as framed, at trial.

The court has now heard all the evidence and the parties have since amplified their arguments on the aforementioned issues in their trial briefs and in their closing arguments. The defendant has also raised two other issues which the court shall consider at this time. First, defendant argues that the allegations made against Dr. German Puerta should be dismissed for failure to exhaust administrative remedies. Second, defendant contends that if the plaintiffs should obtain judgment, then the Veterans Administration benefits previously awarded to them should be set-off against their recovery. In addition, the court, after the trial of this matter and during the period in which this action was under advisement, raised another potential issue with the parties. The court requested that the parties advise them on the possible application of the Kansas comparative negligence statute to the facts here. This brought forth, in addition to the parties' views on the issue, several motions for the court's determination.

As the court has acknowledged to the parties during the course of this litigation, this action presents us with a plethora of difficult factual and legal issues. The trial of the cases added several further complications. This occurred because two of the principal players in this scenario were unavailable to testify at trial. Both parties issued a summons for Theodore Gano but he could not be located during the course of the trial. Dr. German Puerta returned to his native South America in 1978 and thus was unavailable for trial. The parties did, however, present the court with depositions of each of these individuals. In each instance, the parties submitted two depositions for both Gano and Dr. Puerta. The depositions of Dr. Puerta contain several inconsistencies and leave several questions unanswered. The depositions of Gano are even further confusing and troublesome. The first deposition of Gano was taken in a state court action brought by the instant plaintiffs prior to this court's trial of Gano on criminal charges. The instant defendant was not involved in the taking of that deposition. The deposition of Gano taken in this action occurred on February 14, 1979, after Gano's conviction in the criminal matter. Each deposition, in the court's view, takes a slightly different perspective of the events that occurred at the V.A. Hospital. This incongruence adds to the difficulty faced by the court in reaching the truth of what actually happened at the hospital.

With the above considerations in mind and after a thorough review of the evidence presented during the course of the trial, the court makes the following findings of fact and narrative conclusions of law.

FINDINGS OF FACT

1. Jerry P. Bent entered active duty in the United States Army on July 22, 1963. During active duty, Jerry Bent was a dentist in the Dental Corps. He achieved the rank of major prior to his release from active duty.

2. In August, 1969, Jerry Bent was married to Connie Lou Bent, following a divorce from his first wife.

3. Connie Lou Bent, when married to Jerry Bent in 1969, was a widow with two children, Cynthia Lou, age 9, and Robert Paul, age 8. Cynthia and Paul were later adopted by Jerry Bent.

4. In September, 1970, Lisa Bent was born to the marriage of Jerry and Connie Bent.

5. During active duty in the Army, Jerry Bent was stationed in Korea, Vietnam, Hawaii, and Missouri.

6. In 1970, Jerry Bent began an oral surgery training program at Walter Reed Army Hospital in Washington, D.C. He was later transferred to Fitzsimons Army General Hospital in Denver, Colorado, and he continued his training as a resident in the oral surgery program.

7. In June, 1971, as a second year resident, Jerry Bent was placed on probation by his superiors because of unsatisfactory work performance. This action triggered certain "strange behavior" by Jerry Bent and he was subsequently admitted to the psychiatric services unit at Fitzsimons for evaluation. After a thorough psychiatric examination, it was determined that Jerry Bent should be removed from the residency program and placed in a less stressful situation within the Dental Corps.

8. Another psychiatric evaluation was performed on Jerry Bent at Letterman Army General Hospital on September 7, 1971, in San Francisco, California. Jerry Bent was diagnosed as a schizophrenic and once again it was recommended that he withdraw from the oral surgery residency program and be placed in a less stressful situation in practicing dentistry.

9. In December, 1971, Jerry Bent was transferred to Fort Leonard Wood, Missouri. He was placed in the endodontic service and was trained for six months. He was then assigned to the base dental clinic to perform routine endodontic services. Thereafter, Jerry Bent began a period of irregular attendance at work. In addition, his appearance became slovenly. He became unable to cope with day-to-day stresses and began to experience family problems.

10. In 1972, at Fort Leonard Wood, Jerry Bent began weekly outpatient psychiatric therapy sessions. Subsequently, Connie Bent joined her husband in these therapy sessions. Later, family therapy sessions were held with the focus being on family conflict and nuclear conflicts rather than on Jerry Bent's individual difficulties.

11. During the time they were stationed at Fort Leonard Wood, the Bents experienced increased family problems. In 1972, Jerry Bent experienced problems with impotency and Jerry and Connie Bents' sex life became nonexistent. In addition, several violent...