BackgroundWisner 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 ReviewA 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.
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.
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 SupervisionThe 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.