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Veteran Successfully Opposes Summary Judgment Motion in VA Abuse Case

by Raymundo Ribota / February 11, 2020
Mark Wisner, a former Veterans Administration (“VA”) Physician’s Assistant allegedly conducted improper and unnecessary physical examinations of veterans and made inappropriate sexual comments during medical appointments. Wisner is currently serving a fifteen-year prison sentence for criminal sodomy, aggravated sexual battery, and sexual battery. The Plaintiff, John Doe D.P., like the many other veterans who were treated by Wisner, brought claims against the United States pursuant to the Federal Tort Claims Act. The United States District Court, District of Kansas heard the arguments for and against the United States Motion for Summary Judgment. The U.S. asked the court for summary judgment against the veteran Plaintiff on the following grounds: Wisner did not act within the scope of his employment; Wisner’s actions are barred by the Federal Tort Claims Act (“FTCA”) because they were intentional; Wisner did not administratively exhaust his remedies with the VA regarding the negligent supervision claim; and the plaintiff’s negligent supervision claim is barred by the FTCA’S discretionary function exception. The Court granted the Motion and dismissed the negligent supervision claim, but it upheld the veteran’s remaining claims, which will proceed to trial if the parties do not reach a settlement agreement.

Background

                     Wisner saw between 750 to 1,000 patients while he was employed between September 28, 2008 and June 28, 2014 in Leavenworth, VA. He conducted physical exams of patients that were allegedly inappropriate. The Plaintiff was examined by Wisner between August 2013 and November 13, 2013. Every exam with Wisner involved “talking then physical/testicular exam.” A memorandum by the VA Office of Inspector General (“OIG”) noted significant admissions during an interview with Wisner. Wisner admitted to crossing the professional line during patient exams, knowing what he was doing to patients was wrong, and performing exams on patients when they were not medically necessary, and that he falsified medical records to avoid getting caught.

Standard of Review

                    A moving party is entitled to summary judgment when the moving party demonstrates there is “no genuine issue as to any material fact” and that he/she/it is “entitled to judgment as matter of law.” The court views evidence in the light most favorable to the nonmoving party when it applies this standard.

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Scope of Employment

                  The United States Government argued Wisner’s conduct was not within the scope of his employment. The FTCA provides that the U.S. is only liable for tortious accts committed by employees “acting within the scope of their office or employment.” As shown in the case, O'Shea v. Welch, 350 F.3d 1101, 1103 (10th Cir. 2003), employees act within the scope of their employment when they perform services that they were employed to perform, or when they do anything incidental to their employment.
                 The Plaintiff claimed the Physician Assistant’s actions were within the scope of his employment because it was a “slight deviation” from his duties. Legally, employees that slightly deviate from their assigned duties do not cease to act within the course of their employment if their primary purpose is to carry on the business of the employer.
                 The Court stated in its ruling that it would determine at trial whether Wisner’s actions were incidental to his employment based upon consideration of the time, place, intent, and the context of his allegedly improper actions.

Intentional Torts

                   The United States argued that 28 U.S.C. § 2680(h) bars plaintiff’s claims because the FTCA does not apply to claims arising out of battery. The plaintiff, however, argued the VA Immunity Statute creates an “exception to the exception.” The statute allows for a remedy against the U.S. “under the FTCA for damages from the provision of medical services by health care employees of the VA…”
                   The court said that an issue of fact remains as to whether the VA Immunity Statute applies. The U.S. District Court reserved this question for subsequent determination after all of the factual evidence is before the Court.

Negligent Supervision

                  The U.S. argued that the plaintiff failed to administratively exhaust his claim for negligent supervision, meaning that the VA had not made a final, formal Department decision denying the claim. The Plaintiff responded by stating that both the Court and the VA recognized a claim of negligent supervision by Wisner. The VA sent a letter to Wisner’s attorney in September 2015 that indicated the plaintiff’s claim “alleged negligence by the VA.”

                 The Court noted that the case Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 853 (10th Cir. 2005) says that a Plaintiff’s administrative claim “must provide notice of the facts and circumstances underlying the plaintiff’s claims.” However, the Plaintiff’s administrative claim did not mention any specific action or inaction of supervisors. The Court concluded that the Plaintiff failed to exhaust his negligent supervision claim at the administrative level and granted summary judgment on that issue to the Defendant.

Discretionary Function Exception

               The United States government requested summary judgment on the Plaintiff’s negligent supervision claim because the U.S. did not waive its sovereign immunity to this claim. The court determined the Plaintiff failed to exhaust this claim because the VA investigated it without prompting by the Plaintiff.
              The Court performed a two-pronged analysis to determine whether the Defendant’s conduct fell within the discretionary exception. The first prong requires the court to decide whether the government conduct was “a matter of choice for the acting employee.” If the conduct involved choice, the Court then determines whether the judgment “is of the kind that the discretionary function exception was designed to shield.”
              The court strictly construed the discretionary function exception in favor of the U.S. government. The court held that personnel decisions, like employee discipline, are the type of judgments intended to be addressed by the discretionary function exception. It held the Plaintiff did not meet the burden of showing that the decisions whether and how to discipline Wisner fell outside the general rule.

Conclusion

            On January 6, 2020, the United States District Court, District of Kansas granted summary judgment on the Plaintiff’s claim for negligent supervision, but the remainder of the case will proceed to trial. The abuses allegedly committed by Mark Wisner are troubling and sensitive matters. If you have questions about this case or if find yourself in a similar situation, please seek help. Whitcomb, Selinsky attorneys can advise you how strong your case is, and we can represent you in administrative or court claims if you decide to retain us.

Tags: Veterans Benefits

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Raymundo Ribota

Raymundo Ribota

Raymundo has worked in scientific research, public health and environmental advocacy, as well as teaching in higher ed. He recently came back home to Colorado after studying at the University of Wyoming College of Law where he received his law degree and served as President of the law school’s Multicultural Law Student Association.

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