Doe v. United States

JOHN A. DOE, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.

No. 17-2255-DDC

United States District Court, D. Kansas

August 17, 2021

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge.

The matter arises out of plaintiff s tort action against Mark Wisner and his employer-the United States. The Pretrial Order (Doc. 48) explains that plaintiff seeks to recover via three alternative causes of action:

. Negligence (medical malpractice) against all defendants,

. Negligent supervision against defendant United States, and .

Outrage^[1] against all defendants.

The government seeks summary judgment against all three claims. See Doc. 49; Doc. 50 at 3. Plaintiff has filed a Response (Doc. 57) to the government's summary judgment motion. And the United States has filed a Reply (Doc. 62). For reasons explained below, the court grants the Motion for Summary Judgment in part and denies it in part. The United States deserves summary judgment against plaintiffs negligence claim and negligent supervision claim. But, the court denies summary judgment against the outrage claim. The court explains why below, beginning with the uncontroverted material facts.

I. Summary Judgment Facts^[2]

The United States is interested in providing medical treatment to patients at Department of Veterans Affairs (VA) medical centers. Doc. 48 at 3 (Pretrial Order ¶ 2.a.7.). The VA employed Mark E. Wisner as a Physician Assistant from September 28, 2008 until June 28, 2014. Doc. 48 at 3 (Pretrial Order ¶ 2.a.1.). Wisner served as the primary care provider for approximately 750 to 1, 000 patients at the VA Medical Center (VAMC) where the VA employed Wisner to provide direct patient care to veterans, including plaintiff. See Doc. 57-4 at 23 (Cline Dep. 225:8-18).

Veteran Health Administration Directive 1063

Veteran Health Administration (VHA) Directive 1063, titled “Utilization of Physician Assistants (PAs), ” was implemented on December 24, 2013; it rescinded and replaced VHA Directive 2004-29. See Doc. 50-2 at 1 (VHA Dir 1063). VHA Directive 1063 refers to a quarterly “retrospective review of at least five randomly selected patient encounter notes, ” not a retrospective review of the entire medical record for five randomly selected patients. See Id. at 11 (emphasis added). The Directive was in effect only for one full annual quarter of Wisner's tenure treating patients at the VA. See Id. at 1; Doc. 48 at 3 (Pretrial Order ¶¶ 2.a.1.-3.).

Oversight of Wisner

As a physician assistant at the Leavenworth VAMC, Wisner practiced under the supervision of various physicians. Doc. 48 at 5 (Pretrial Order ¶ 2.a.22.). As a physician's assistant, Wisner only was able to provide medical care to plaintiff and other veterans under the supervision of VA physicians. From 2010 to the end of Wisner's employment by the VA, Dr. Daniel Cline served as Wisner's supervising physician and first-line supervisor. Doc. 57-4 at 27 (Cline Dep. 239:8-12). Supervising Wisner was within Dr Cline's scope of employment. Id. at 31 (Cline Dep. 246:22-25).

Under VHA Directive 1063, Wisner's collaborating physicians including Dr. Cline, were responsible for providing clinical oversight, consultation, and patient care management assistance to Wisner. Doc. 48 at 5 (Pretrial Order ¶ 2.a.24.). VHA Directive 1063 also made collaborating physicians responsible for monitoring Wisner's clinical activities to ensure they were within the authorized scope of practice. Id. (Pretrial Order ¶ 2.a.25.). And the directive made the Chief of Service in Wisner's chain of command at the VA responsible for taking action to correct any discovered deficiencies in Wisner's clinical practice. Id. (Pretrial Order ¶ 2.a.26.).

The VA employed Wisner to, in part, conduct physical examinations of patients which may have included sensitive or “intimate” or “uncomfortable” matters. Id. at 3-4 (Pretrial Order ¶¶ 2.a.8.-9.). The United States neither required a supervisor's presence during Wisner's examinations of his patients nor required a chaperone's presence during Wisner's examinations of his male patients. Id. at 4 (Pretrial Order ¶¶ 2.a.10.-11.).

March 2012 Allegations Against Wisner

In March 2012, Wisner's direct supervisor, Dr. Cline, knew of an allegation that Wisner had performed an inappropriate patient examination. Doc. 57-4 at 27 (Cline Dep. 239:8-12).

On March 29, 2012, a patient alleged that Wisner had sexually assaulted him during a medical appointment the previous day. Doc. 48 at 4 (Pretrial Order ¶ 2.a.12.). That day, VA police and the VA Office of Inspector General (OIG) were made aware of the patient's allegations. Id. (Pretrial Order ¶ 2.a.13.). But these allegations were investigated and closed as unproven. Id. (Pretrial Order ¶ 2.a.14.).

Plaintiff's Treatment at the Leavenworth VAMC

Plaintiff sought and received care at the Leavenworth VAMC. Doc. 48 at 4-5 (Pretrial Order ¶¶ 2.a.15., 23.). According to his medical records, plaintiff first saw Wisner at the VAMC on December 13, 2011. Doc. 48 at 6 (Pretrial Order ¶ 2.a.31.). Plaintiff's medical records identify a total of four visits with Wisner at the VAMC-December 13, 2011; January 24, 2012; June 4, 2012; and May 1, 2014. Doc. 48 at 6 (Pretrial Order ¶ 2.a.33.). Wisner's medically documented examinations of plaintiff occurred in a VAMC exam room while the facility was open and operating. Id. (Pretrial Order ¶¶ 2.a.16.-17.). Wisner's medically documented genital exams were part of his overall physical examinations. Id. (Pretrial Order ¶ 2.a.18.). At least some portion of the medical care Wisner provided plaintiff was for a valid medical purpose to provide diagnostic care. Id. (Pretrial Order ¶ 2.a.19.).

Plaintiff's May 1, 2014 VAMC Visit with Wisner

Plaintiff suffers from prostatitis. Doc. 50-5 at 1. On May 1, 2014, plaintiff saw Wisner for this condition. Id. According to plaintiff's medical records, that was the last time plaintiff saw Wisner at the VAMC. Doc. 48 at 6 (Pretrial Order ¶ 2.a.32.). Later, plaintiff told VA OIG Special Agent Baker that Wisner's genital exam was an “unusual exam based on his past exams for prostatitis symptoms.” Doc. 50-5 at 2. Plaintiff told Special Agent Baker that Wisner's rectal examination was “HIGHLY unusual” and involved “much deeper” penetration (than his previous exams) twice by an object for 20 to 30 seconds. Id.; see also Doc. 57-21 at 2-14 (plaintiff's testimony describing Wisner's May 1, 2014 acts and detailing how those acts differed from plaintiff's previous rectal exams and prostate treatment).

Plaintiff told Special Agent Baker that he asked Wisner “WHAT THE F[ ] WAS THAT?” after Wisner's actions. Doc. 50-5 at 2. Plaintiff reported that, “Wisner may have been washing his genitals in the sink” after he had stopped touching plaintiff. Id. Plaintiff told Special Agent Baker that when Wisner escorted him out of the examination room, he “contemplated striking [Wisner] but recognized that this would be a felony.” Id. Based on his interactions with Wisner, plaintiff sought mental health treatment from several people, including someone at the VAMC. Doc. 48 at 6-7 (Pretrial Order ¶ 2.a.40.).

Wisner's Departure and Fallout

On May 19, 2014, the VA placed Wisner on Authorized Absence. Doc. 48 at 3 (Pretrial Order ¶ 2.a.2.). The VA placed Wisner on administrative leave at the end of May 2014 based on a report of sexual misconduct. Id. (Pretrial Order ¶ 2.a.3.) (citation omitted). Wisner remained on Administrative Absence until June 28, 2014, when he voluntarily retired from the VA based on his eligibility under laws in effect at that time. Doc. 50-4 at 10-11 (Baker Dep. 21:22-22:3).

On January 23, 2015, VA Office of Inspector General (OIG) Special Agent Kerry Baker and Lt. Detective Joshua Patzwald of the Leavenworth County, Kansas Sheriff's Office interviewed Wisner. See Doc. 50-7 at 2.^[3] During this interview, Wisner shared that he crossed the professional line and was excessive in providing purported genital examinations. Id. Wisner shared that he performed genital “examinations” on his patients where they were not medically indicated or necessary, and that he did so for his own pleasure. See Id. Wisner acknowledged that he chose his victims, and that his victims were all attractive and of a similar body type. See Id. at 3.

Wisner acknowledged he knew that what he was doing to his patients was wrong and that he lacked self-control. See Id. Wisner shared that he provided genital examinations to his patients to satisfy his own curiosity and that all of his behavior was designed simply to satisfy his curiosity. See Id. Wisner admitted that he took active steps to avoid getting caught. Id. Specifically, he falsified medical records. Id. His acts of falsification included failing to document multiple genital examinations. Id. at 2-4; Doc. 50-8 at 10 (¶ 35).

In February 2015, Wisner entered into a Consent Order with the Kansas State Board of Healing Arts to Surrender his license to practice medicine. Doc. 48 at 3 (Pretrial Order ¶ 2.a.4.). In the Consent Order, Wisner admitted that he “used his position as a Physician Assistant at the Dwight D. Eisenhower VA Medical Center in Leavenworth, Kansas to commit sexual battery crimes against veteran patients[.]” Doc. 50-8 at 3 (¶ 11). He also admitted that he “repeatedly sexually assaulted” his patients, “had inappropriate sexual contact” with them, and “made inappropriate sexual comments” to his patients. Id. at 10 (¶ 33).

Wisner faced a criminal sodomy charge based on his actions towards plaintiff on May 1, 2014. Doc. 48 at 6 (Pretrial Order ¶ 2.a.36.). Plaintiff confirmed that he testified at Wisner's criminal trial. Doc. 50-6 at 5 (Pl.'s Dep 57:3-7). In August 2017, Wisner was convicted of multiple criminal charges...