Doe v. United States

JOHN DOE D.P., Plaintiff, v. UNITED STATES OF AMERICA AND MARK WISNER, Defendants.

Case No. 16-2267-DDC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

January 15, 2021

MEMORANDUM OF DECISION UNDER RULE 52(a)

Over the course of a week in late September and early October of 2020, the court conducted a bench trial via Zoom video technology with the active parties in this case, plaintiff John Doe D.P. and defendant United States of America. Both parties consented to conducting the trial in this fashion, given the global pandemic affecting our country and the courts. 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 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 about relevance and admissibility in this Memorandum of Decision. If this Memorandum of Decision 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 allegations of repeated, improper touching of plaintiff's genitals during medical appointments with defendant Mark 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 United States doesn't dispute plaintiff's allegation that Wisner examined plaintiff's genitals when unnecessary, without gloves. 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 allegedly were not within the scope of his employment, and

(b) the acts allegedly were not taken "in furnishing medical care"; and, if the United States is liable for Wisner's conduct,

(2) whether Wisner caused plaintiff any—or, at most, minimal—injury.

Finally, the parties sharply disagree about the amount of a damage award—if plaintiff prevails.

As required by Fed. R. Civ. P. 52(a)(1), this Memorandum of Decision 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 atwhy the district court reached its conclusion." OCI Wyo., L.P., 479 F.3d at 1204 (citation omitted).

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

Findings of Fact

1. Plaintiff saw Wisner for medical appointments at least four times between August 21, 2013 and November 13, 2013. Plaintiff also testified that he saw Wisner in 2014 for shoulder pain, but plaintiff did not know the date and Wisner did not memorialize an appointment with plaintiff during 2014. During at least three appointments (two appointments in October and one in November 2013), Wisner performed a genital examination of plaintiff.¹ He never wore gloves during any of those exams. None of the genital examinations were medically justified.²

2. During the exams, Wisner made unnecessary and inappropriate sexual comments about plaintiff's penis. He commented, for example, "I'm sure the ladies must like this," and asked about plaintiff's sexual practices and experiences while he was overseas.

3. Wisner also used unconventional disrobing practices with plaintiff. He would have plaintiff lie on his back, and then Wisner would unfasten plaintiff's belt and pants, pull them down, and slide his hand underneath plaintiff's boxer shorts to conduct the genital examination.

4. While plaintiff felt uncomfortable during some of his visits with Wisner, he did not realize, immediately, that Wisner was acting inappropriately and he did not stop seeing Wisner for appointments.

5. Before plaintiff began seeing Wisner for medical appointments, he suffered from wartime PTSD, generalized anxiety disorder, major depressive disorder, panic disorder without agoraphobia, and chronic shoulder pain (after three surgeries on his shoulder).³ Plaintiff also suffered from addiction to opiates and benzodiazepines. He had felt suicidal off and on since 2009. Indeed, at one point in July 2013, plaintiff believed that he had hit "rock bottom." This sensation occurred before he even met Wisner.⁴ Wisner was aware of plaintiff's problems; indeed, he first met plaintiff while plaintiff was in the "DOM" program at the VA.⁵ Plaintiff was in the DOM from July 2013 to October 2013. Despiteknowing that plaintiff suffered from addiction, Wisner prescribed opiates and benzodiazepines for plaintiff shortly after he was discharged from the DOM.⁶ Wisner was even on call one night when plaintiff went to the emergency room after taking too many benzodiazepines. The next day, plaintiff met with Wisner, plaintiff's mother, VA social worker Dawn Clouse, and, possibly Dr. Santos—plaintiff's mental health provider. Plaintiff's mother expressed her concern about medications the VA was prescribing for plaintiff, but Wisner told plaintiff's mother that plaintiff was not addicted to the medications and that he (Wisner) would take good care of plaintiff. The opposite was true. Plaintiff was addicted and was afraid that Wisner would not continue his prescriptions if he did not allow Wisner to examine his genitals at each appointment. After Wisner stopped treating plaintiff, the VA started titrating plaintiff off the mediations. But Wisner had convinced plaintiff that plaintiff's shoulder pain gave him a medically-valid reason for the opiate prescriptions, so when plaintiff's prescriptions were stopped, he turned back to street drugs⁷ and, eventually, heroin to reduce his pain.

A. Findings About the Scope of Employment Question

The Work Which the VA Hired the Employee to Perform

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

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

8. As a primary care provider, Wisner compiled the personal history of patients. In this role, sometimes providers must ask questions about sensitive and private matters, like sexual history, practices, and habits.

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

The Freedom Allowed the Employee in Performing His Job Responsibilities

10. Wisner led the OEF-OIF Clinic (Operation Enduring Freedom and Operation Iraqi Freedom) at the VA Medical Center 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 the VA had a 750-patient limit.

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

12. 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.⁸

This omission violated VHA Directive 2004-029,⁹ 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 monitored Wisner's clinical activities.

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

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

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

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

The Incidental Acts Reasonably Expected by the Employer

17. 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.

18. The Leavenworth VA's policies recognize the potential for patient abuse.

19. Health care provider abuse is a known risk in the health care community.

20. Given the VA's

...