Professional Negligence Law Reporter

Doe, who suffered from war-related PTSD and spinal problems, received medical care at the Veterans Administration (VA) Medical Center in Leavenworth, Kan. During most of the 13 appointments Doe had with physician assistant Mark Wisner, Wisner examined Doe’s genitals. Wisner failed to wear gloves during any of these exams, which were excessively long. He also made unnecessary and inappropriate comments about Doe’s genitals. In addition, Wisner prescribed powerful narcotics to Doe, who became impaired and suffered exacerbation of his addiction problems, which led to a years-long street drug problem.

Doe sued the United States, alleging medical malpractice.

The court concluded, among other things, that Wisner had committed malpractice by conducting genital exams on Doe without wearing gloves and performing unnecessary exams that were excessively long.

The court rejected the defense theory that a criminal act cannot amount to medical malpractice, finding that a breach of the professional standard of care and criminal activity can occur at the same time. The court also concluded that the VA should have foreseen Wisner’s tortious conduct, which was within the scope of his employment or reasonably incidental to it, and that the VA immunity statute applies to waive the United States’ sovereign immunity.

The court awarded the plaintiff more than $1.5 million.

Citation: Doe v. United States, 2020 WL 6469996 (D. Kan. Nov. 2, 2020).

Plaintiff counsel: AAJ member Daniel A. Thomas, AAJ member J’Nan C. Kimak, AAJ member Michael S. Kilgore, and Nichelle L. Oxley, all of Independence, Mo.