Leininger v. United States

• Decision Date: 02 November 2020
• Docket Number: Case No. 16-2627-DDC
• Parties: Aaron LEININGER, Plaintiff, v. UNITED STATES of America and Mark Wisner, Defendants.
• Court: U.S. District Court — District of Kansas

499 F.Supp.3d 973

Aaron LEININGER, Plaintiff,

v.UNITED STATES of America and Mark Wisner, Defendants.

Case No. 16-2627-DDC

United States District Court, D. Kansas.

Signed November 2, 2020

Daniel A. Thomas, Pro Hac Vice, J'Nan C. Kimak, Michael S. Kilgore, Nichelle L. Oxley, Pro Hac Vice, Humphrey Farrington & McClain, PC, Independence, MO, for Plaintiff.

Chris Benson, Larry Eiser, U.S. Department of Justice, Sarah Haston, Virginia Jackson Elliott, DOJ-Civ, Washington, DC, for Defendants.

MEMORANDUM OF DECISION UNDER RULE 52(a)

Daniel D. Crabtree, United States District Judge

Over the course of a week in July 2020, the court conducted a bench trial via Zoom video technology with the active parties in this case, plaintiff Aaron Leininger and defendant United States of America. Both parties consented to the trial being conducted in this manner, given the global pandemic affecting our country. Defendant Mark Wisner—who is an inmate in a Kansas correctional facility—did not participate in the trial, although his deposition was taken to preserve his testimony for trial.

Post-trial, the court allowed the parties to submit optional briefing and proposed findings of fact. The court has reviewed the evidence from trial—including the evidence submitted for review outside the (virtual) courtroom. At the conclusion of the parties’ presentation of evidence, several evidentiary questions remained for the court's decision. To the extent necessary to resolve the case, the court makes the requisite determinations on relevance and admissibility in this Memorandum and Order. If this Memorandum and Order does not refer to contested evidence or its admissibility, the court found the evidence immaterial to its ruling and decided that no ruling was necessary.

At a very high level, this case involves the repeated improper touching of plaintiff's genitals during medical appointments with Wisner at the Veterans Administration Medical Center in Leavenworth, Kansas. Plaintiff seeks to hold the United States responsible for Wisner's actions, on theories of medical malpractice and intentional infliction of emotional distress. The parties don't dispute plaintiff's allegation that Wisner examined plaintiff's genitals when unnecessary, without gloves, and for too long. Instead, the disputes here focus on:

(1) whether the United States can be held liable at all for Wisner's actions because

(a) the acts were not in the scope of his employment,

(b) the acts were not taken "in furnishing medical care," and

(c) plaintiff knew or should have known of his injury much earlier, making his claims barred by the statute of limitations; and, if so,

(2) whether Wisner caused plaintiff any injury; and, if so,

(3) how much plaintiff should recover as damages for that injury.

As required by Fed. R. Civ. P. 52(a)(1), this Memorandum and Order includes separate findings of fact and conclusions of law. "A district court's findings of fact ‘should be sufficient to indicate the factual basis for the court's general conclusion as to ultimate facts[,] ... should indicate the legal standards against which the evidence was measured[,] ... [and] should be broad enough to cover all material issues.’ " OCI Wyo., L.P. v. PacifiCorp , 479 F.3d 1199, 1203 (10th Cir. 2007) (quoting Otero v. Mesa Cty. Valley Sch. Dist. , 568 F.2d 1312, 1316 (10th Cir. 1977) ; further citations omitted). But " Rule 52(a) does not require the district court to set out its findings and conclusions in excruciating detail." Sierra Club, Inc. v. Bostick , 539 F. App'x 885, 902 (10th Cir. 2013) (Martinez, J., dissenting) (citation omitted). On the other hand, "too little detail frustrates meaningful appellate review by requiring the parties and this court to guess at why the district court reached its conclusion." OCI Wyo., L.P. , 479 F.3d at 1204 (citation omitted).

With these standards in mind, the court turns to its Findings of Fact and Conclusions of Law.

Findings of Fact

1. Plaintiff saw Wisner nine times between July 13, 2012 and February 25, 2014. During all nine appointments, Wisner performed a genital examination of plaintiff. He never wore gloves during any of those exams. Also, the exams were excessively long.

2. During the exams, Wisner made unnecessary and inappropriate comments about the size of plaintiff's penis and the sexual satisfaction of plaintiff's spouse.

3. Although plaintiff may have felt uncomfortable during his visits with Wisner, he did not realize immediately that Wisner was doing anything inappropriate, he did not voluntarily stop seeing Wisner for appointments, and he did not suffer psychological damage until later learning that Wisner had manipulated him.

A. Findings About the Scope of Employment Question

The Work Which the VA Hired the Employee to Perform

4. Wisner was hired by the Department of Veterans Affairs ("VA") in 2008 as a Physician Assistant ("PA").

5. A PA administers basic medical care and screenings. These duties include genital, rectal, and prostate examinations when they are medically indicated. These exams may involve sensitive, intimate, or uncomfortable matters.

6. As a primary care provider, Wisner took the personal history of patients. Taking a personal history may involve asking personal and private questions, which could include questions about sexual anatomy and the patient's sexuality and sexual practices.

7. In short, Wisner was hired to conduct, among other things, genital examinations. He also was expected to ask personal questions that might make patients uncomfortable—with the goal of obtaining a comprehensive medical history.

The Freedom Allowed the Employee in Performing His Job Responsibilities

8. Wisner led the OEF-OIF (Operation Enduring Freedom and Operation Iraqi Freedom) clinic in Leavenworth, Kansas. In that role, he had a great deal of autonomy. He was the only primary care practitioner at the clinic, and was responsible for nearly a thousand patients, although there was a 750-patient limit.

9. No supervisor or chaperone was required to be present during Wisner's examinations of male patients.

10. Daniel Cline, M.D. was Wisner's first-line supervisor. Dr. Cline was unaware that he was supposed to review Wisner's charts, and he did not monitor Wisner's activities.¹ This omission violated VHA Directive 2004-029, which required monitoring and evaluation of a PA's clinical activities. No one at the VA told Dr. Cline about rules governing him as a supervising doctor or ensured that he was monitoring Wisner's clinical activities.

11. In determining Wisner's competency, Dr. Cline relied on what Wisner said he did. He did not investigate complaints about Wisner.

12. VHA Directive 1063 required oversight, consultation, and assistance with patient care management, but the VA did not follow any of these requirements with Wisner.

13. VHA Directive 1063 gives PAs varying levels of autonomy based on their experience: "full," "limited," and "supervised." Wisner had full autonomy; he had "full leeway to do his job, make independent medical decisions, and decide what tests to order, and perform diagnoses."

14. Wisner thus enjoyed unfettered authority to decide when and how to do genital, rectal, and prostate exams. The court finds that Wisner had substantial freedom—in retrospect, far too much freedom—in performing his job duties.

The Incidental Acts Reasonably Expected by the Employer

15. The VA Eastern Kansas Health Care System issued a Policy Memorandum on February 5, 2010, to identify and address suspected abuse (including sexual abuse) among the patient population. On May 21, 2013, the VA Eastern Kansas Health Care System issued another Policy Memorandum addressing incidents of patient abuse.

16. The Leavenworth VA's policy recognizes the potential for patient abuse.

17. Healthcare provider abuse is a known risk in the healthcare community.

18. Given the acknowledgment of the risk of patient abuse by the VA and the healthcare community, the court finds that the VA should have anticipated that acts of abuse could occur in an un-monitored situation—particularly when the job, by nature, involved sensitive and intimate examinations and discussions.

The Nature, Time, and Place of the Deviation

19. Wisner conducted all of his examinations during working hours, in an examination room at the VA Medical Center in Leavenworth, Kansas.

20. For a new patient, the first intake was scheduled for one hour, and included a medical history and a head-to-toe physical.

21. When Wisner performed a genital exam, it consumed only a small fraction of the time he spent with the patient during the medical appointment.

The Time Consumed in the Deviation

22. Wisner's genital exams of plaintiff lasted two to three minutes.

23. In the context of an office visit lasting 30 to 60 minutes, two to three minutes was a small amount of time dedicated to either unnecessary, ungloved, or needlessly extended genital exams. Had the medically-indicated examinations been limited to a "reasonable" time, they still would have lasted 30 seconds to one minute.

The Employee's Intent

24. Wisner exhibited mixed motives. He wanted to be thorough in his exams, but also had an inappropriate sexual curiosity. As a healthcare provider, Wisner strove to be thorough—even though his genital or rectal exams lasted too long. Dr. Thomas Kelley, plaintiff's expert witness, testified credibly about Wisner's mixed motives. The court found his testimony to be reasonable, well-supported, and consistent with the record as a whole. Specifically, Dr. Kelley's characterization of Wisner's motives is consistent with Wisner's background in the military. It also comports with the fact that Wisner appeared to conduct full physical examinations on his patients; he did not wholly abandon his role as a healthcare provider during appointments. And during Wisner's January 23, 2015 interview with Special Agent Kerry Baker, Wisner told Agent Baker that "his method was simply thoroughness in looking for any irregularities in their genitals." (Ex. 406, at W

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