Hutchison v. United States, Robert A. Mcdonald, & Mark Wisner, P.A.
| Decision Date | 23 May 2017 |
| Docket Number | Case No. 16-2490 |
| Parties | JOHN M. HUTCHISON and SARAH E. HUTCHISON, Plaintiffs, v. UNITED STATES OF AMERICA, ROBERT A. MCDONALD, and MARK WISNER, P.A. Defendants. |
| Court | U.S. District Court — District of Kansas |
Plaintiffs John and Sarah Hutchison ("J.H." and "S.H.," 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 J.H. 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.
J.H. is a veteran who sought treatment at the Dwight D. Eisenhower VA Medical Center ("VA") located in Leavenworth, Kansas. S.H. is J.H.'s wife. Wisner treated and provided medical care for J.H. between 2011 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 J.H.'s prostate and conducting improper and/or unnecessary examinations of J.H.'s genitals without gloves during appointments. They claim that Wisner failed to recognize his own impairment and refer J.H. to another practitioner. Plaintiffs further allege that Wisner used his position to elicit unnecessary private information J.H. and was negligent when he prescribed medication to J.H. 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 medical purpose.
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 Wisnervictimized 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 patients.
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 J.H. 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. S.H. brings a consortium claim and alleges that as a result of J.H.'s injuries, she has lost the society, conjugal fellowship, love, affection, consortium, and companionship of her husband.1
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate when the court lacks subject matter jurisdiction over a claim. Plaintiff claims that subject matter jurisdiction exists and has 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. 2008).
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, 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, theclaims 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. § 1346(b)(1).
1. 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...
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