Webb v. U.S., CIV.A. 97-0283-B.
| Decision Date | 03 November 1998 |
| Docket Number | No. CIV.A. 97-0283-B.,CIV.A. 97-0283-B. |
| Parties | Edwina WEBB, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Virginia |
Timothy Worth McAfee, Bledsoe & McAfee, P.C., Big Stone Gap, VA, for Plaintiff.
John F. Corcoran, U.S. Attorney's Office, Roanoke, VA, for U.S., Zubair Latif, Dr.
The question in this case is whether sexual battery on a patient by a government doctor falls within the scope of the doctor's employment under the Federal Tort Claims Act. Applying Virginia employment law to the particular facts of this case, I find that the doctor was not acting within the scope of his employment.
On December 1, 1997, Edwina Webb filed a complaint against the United States in this court under the Federal Tort Claims Act, 28 U.S.C.A. §§ 2671-2680 (West 1994) ("FTCA"), and the Federally Supported Health Centers Assistance Act, 42 U.S.C.A. § 233 (West 1991) ("FSHCAA"). Webb asserts that on December 10 and December 13, 1996, while she was receiving medical treatment from Stone Mountain Health Services, a health center receiving assistance under the FSHCAA, Zubair Latif, M.D., an employee of the center, committed sexual battery on her, for which she seeks damages.
On December 2, 1998, the United States filed a motion to dismiss, asserting that the FTCA provides only a limited waiver of sovereign immunity and that assault and battery is specifically excluded from the statute. In response, Webb moved to amend the complaint to add Dr. Latif as an individual defendant. On February 20, 1998, Webb's motion was granted and subsequently Webb filed an amended complaint, naming Dr. Latif individually, as well as the United States, as defendants.
On March 13, 1998, pursuant to the Federal Employees Liability and Reform Tort Compensation Act of 1988, 28 U.S.C.A. § 2679(d) (West 1994) (the "Westfall Act"1), the United States Attorney for the Western District of Virginia certified that Dr. Latif was acting within the scope of his employment as an employee of a federally-assisted community health center as defined in the FSHCAA. 42 U.S.C.A. § 233(g)-(n). Pursuant to the Westfall Act, the United States also filed a notice substituting the United States as defendant, precluding suit against Dr. Latifby Webb. The United States then renewed its motion to dismiss, again contending that the FTCA specifically excludes the intentional tort alleged.
On April 2, 1998, Webb filed a memorandum in opposition to the United States' motion to dismiss. Webb contends that the United States Attorney's certification, and the resulting substitution of the United States for Dr. Latif, are invalid because Dr. Latif's actions did not occur within the scope of his employment.
By opinion dated May 11, 1998, I found that a genuine issue of material fact existed as to whether Dr. Latif acted within the scope of his employment under applicable law. The parties were ordered to engage in discovery limited to the scope-of-employment issue, with an evidentiary hearing to follow. Decision on the government's motion to dismiss was deferred while the validity of its scope-of-employment certification was determined. Likewise, the plaintiff's subsequent motion for leave to amend her complaint to sound in negligence, thus avoiding the intentional torts exclusion under the FTCA, was also deferred pending the results of the evidentiary hearing.
The evidentiary hearing on scope of employment was held on September 8, 1998, and the issues are now ripe for decision.
The following are my findings of fact, based on the evidence presented at the hearing.
1. On December 10, 1996, Edwina Webb went to the St. Charles Clinic, a medical facility operated by Stone Mountain Health Services, in Pennington Gap, Virginia, on a regular, scheduled visit for treatment of her panic disorder illness.
2. During her regular monthly appointments at the St. Charles Clinic, Webb was examined by the clinic personnel in order to determine any necessary treatment. Depending on her condition at the time, these examinations included monitoring of her heart rate, blood pressure, and lungs; blood work; and consultations concerning her prescription medications.
3. When Webb arrived at the clinic on December 10, 1996, she was assigned to Dr. Zubair Latif, one of the staff physicians employed by Stone Mountain Health Services. The plaintiff had never seen Dr. Latif before.
4. According to Webb, Dr. Latif conducted the exam in one of the rooms at the facility, without assistance from any staff nurses, and he and Webb were alone.
5. Webb alleges that she informed Dr. Latif of her panic disorder and also indicated that she was having some problems with a previous spontaneous pneumothorax.2 Dr. Latif appeared to have Webb's medical history with him for his consultation.
6. At this point, Webb alleges that Dr. Latif had the plaintiff lie back on an examination table. He then began by lifting up Webb's shirt and bra and feeling her breasts. This occurred despite the plaintiff's comment that she had received a breast examination only a week before. Webb alleges that she thought something might be wrong and asked Dr. Latif what he was doing. Dr. Latif, however, did not respond. No covering towel was provided, as Webb alleges was customary for breast examinations at the clinic, nor was another staff member present, as had always been the practice at the clinic for breast exams. Dr. Latif continued in this way for a minute or two, feeling the plaintiff's breasts and staring at them. Webb alleges that the exam was unlike any she has had in her experience. She is now thirty-four-years old, and has had regular breast exams since age fourteen.
7. Webb alleges that at some point while she was on the examination table, Dr. Latif had her pull her pants down, leaving only her panties on. He then allegedly conducted an examination of Webb's legs, buttocks, breasts and neck, with a medical instrument unfamiliar to Webb. According to Webb, Dr. Latif asked her to turn to her left side, and then, without her having asked for his assistance, grabbed her by the waist and hips and turned her himself.
8. Webb next alleges that she left the exam room for X rays of her chest (ostensibly to check her pneumothorax), and then returned with the films as Dr. Latif had instructed. No nurse was present upon her return.
9. Webb alleges that she assumed a seated position in an examination room chair, next to the doctor's desk. According to Webb, Dr. Latif then pushed a stool in front of her and sat down. At this point, Webb alleges that Dr. Latif renewed his improper contact with her: (Tr. at 30.)3
10. Following this encounter, Webb alleges that the discussion with Dr. Latif turned to her medications. Despite insisting that she had been addicted to the medication Xanax, Webb alleges that Dr. Latif wrote a one-milligram-dose prescription for her, in addition to a two-milligrams-dose prescription of Klonopin.
11. Upon leaving the clinic that day, Webb alleges that she expressed her discomfort to Gail, the clinic secretary, stating that "the doctor made me very uncomfortable." (Tr. at 33.) Because she did not expect anything to happen again, however, and upon Gail's recommendation to "[s]ee how it goes next time," (Tr. at 49), the plaintiff did nothing further regarding the incident.
12. On December 13, 1996, just three days later, Webb alleges that she suffered a "severe panic attack" (Tr. at 34) which brought her back to the clinic. Dr. Latif was the only available doctor, according to Webb, and consequently the plaintiff agreed to be examined by him again.
13. As had been the case on December 10, Webb alleges that Dr. Latif was again unaccompanied by a clinic staff nurse.
14. According to Webb, Dr. Latif began the exam by repeating his actions of December 10, lifting up her shirt and bra and feeling her breasts. When Webb voiced her disapproval, Dr. Latif was non-responsive.
15. Webb alleges that she then got up, pulling her bra and shirt down, and retreated to the examination room chair. Dr. Latif followed her, however, and once again sat on the stool and maneuvered his way in front of the seated Webb. Dr. Latif tried to assuage Webb, grabbing her hands and face again and telling her to relax. Webb alleges that Dr. Latif kept pulling her face up to his pelvic region, grabbing her hands, and massaging her neck and back.
16. This time, Webb alleges that she "jerked away" from Dr. Latif. At this point Dr. Latif allegedly grabbed the plaintiff's breasts with both hands from behind, but Webb "jerked away" again, this time for good. (Tr. at 35.)
17. Webb claims that Dr. Latif then proposed a rendezvous at his apartment, at which time he said he would "give [her] a few hundred dollars." (Tr. 36.) According to the plaintiff, however, she did not meet with Dr. Latif. Dr. Latif also allegedly offered her an injection of Vistaril, which she refused.
18. Dr. Latif testified that he had no independent recollection of seeing Webb. (Tr. 72.) He denied Webb's account of the incidents on December 10 and 13, but admitted that "that type of conduct, if done by a physician, would not be medically appropriate," and would not "help and further the business interests of Stone Mountain Health Services." (Tr. at 71-72.) I agree, and find that, if they occurred, Dr. Latif's actions were not medically appropriate and would not further the interests of his employer.
19. The alleged acts violated Stone Mountain Health Services' "sexual harassment policy," which Dr. Latif was subject to at the time of his employment. (Tr. at 11.)
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