Opinion
Case Nos. 96-4167-RDR, 96-4183-RDR.
December 26, 2000.
MEMORANDUM AND ORDER
Introduction
These cases are tort actions against the United States and Dr. Tom Patterson, who once worked for the Department of Veterans Affairs ("VA") as the Director of the Psychological Unit at the Colmery-O'Neil Veterans Affairs Medical Center. The cases allege malpractice and negligent supervision in the provision of mental health services. Case No. 96-4167 has always been filed in this court. Case No. 96-4183 was originally filed against Dr. Patterson in state court. The case was removed to federal court when the United States intervened and the Attorney General filed a partial certification under the Westfall Act, 28 U.S.C. § 2679. The partial certification stated that part of the actions upon which plaintiff was suing occurred while Dr. Patterson was working within the scope of his employment for the United States. These cases, which have been consolidated, are now before the court upon defendant Patterson's motion to certify the scope of his employment in a different manner than was done by the Attorney General.
The Westfall Act was passed by Congress to immunize all federal employees from liability for actions taken within the scope of their employment. Under the principles of immunity contained in the Westfall Act, the United States is substituted as the defendant with regard to those actions. Westfall certification by the United States does not conclusively establish scope of employment questions. The statute clearly provides for review of a refusal to certify at the instigation of a defending employee. 28 U.S.C. § 2679(d)(3). The statute has been construed to allow plaintiffs to move for judicial review of Westfall certifications by the Attorney General. Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995).
Dr. Patterson's motion to certify seeks an order certifying that he acted at all times within the scope of his employment vis-a-vis the allegations in this case. The Attorney General's certification states that defendant Patterson was acting within the scope of his employment only from December 1982 to April 20, 1983. The government concedes that certification may be extended to May 24, 1983. The line is drawn on that date because that was the end of "formal" therapy sessions between Dr. Patterson and plaintiff.
Although in their briefs Dr. Patterson and the United States are at odds in some respects with regard to certification of scope of employment, they are as one in arguing that Dr. Patterson and plaintiff did not have a doctor/patient relationship after May 1983. Of course, this raises the question of whether Dr. Patterson could have been working within the scope of his employment vis-a-vis plaintiff if they did not have a doctor/patient relationship. This, in turn, suggests an issue broader than certification of scope of employment — one which goes to the merits of some of plaintiff's claims. If it is determined that there was no doctor/patient relationship after May 1983, then plaintiff's substantive claims may be undercut. However, this motion was presented as a motion in opposition to the Attorney General's certification of scope of employment. Accordingly, in this order we will not address the legal or factual merit of plaintiff's claims.
Facts
The court conducted an evidentiary hearing on this matter. The evidence produced at the hearing showed the following. Dr. Tom Patterson is retired as of 1995 from the psychiatric service at the Colmery-O'Neil Veterans Affairs Medical Center. He was chief of the service. He served there for 24 years, thirteen as chief.
During his service, Dr. Patterson developed programs for problems faced by Vietnam veterans. Indeed, after 1979, he confined his practice to Vietnam veterans. One of the areas where he focused his attention was the treatment of post-traumatic stress disorder (PTSD).
The first step of his treatment strategy was to gain the trust of the patient. His approach with Vietnam veterans was different from other patients. He did not insist on regularly scheduled sessions or meetings in his office as opposed to locations away from his office. Meeting at a location away from the doctor's "home turf" was helpful in building the trust of the patient. Sometimes meetings occurred impulsively. He took phone calls at all hours and was frequently involved in crisis intervention outside of the medical center grounds. He had lunch or other meals with his patients. He did outreach programs to encourage reluctant veterans to obtain help.
The Chief of Staff at the Medical Center was aware of Dr. Patterson's treatment philosophy and that treatment occurred away from the medical center campus at times. In fact, some of Dr. Patterson's efforts outside his office were recognized in a recommendation for an award from the Department of Veterans Affairs. The recommendation, which was written by the Chief of the Psychiatry Service of the medical center and dated August 12, 1981, states in part:
He is consistently willing to respond to the needs of Vietnam veterans, their families and friends, without concern for his own time and energy. . . . He has missed many lunch hours or taken the veterans to lunch with him, because there was no other time to see them. He responds to calls at all hours. . . . He keeps in personal contact for supportive therapy with the veterans who have left group or individual therapy.
Dr. Patterson testified that he received the award for actions done for persons who were not patients. He considered these actions as "pre-therapy" and "post-therapy." He further testified that "supportive therapy" was something he performed in crisis situations, not the social visits he had with plaintiff and other veterans.
Dr. Patterson testified that he provided treatment to plaintiff from December 1982 to May 1983. His first contact was a phone call from plaintiff. They met on the night of the phone call at a local restaurant. At that time, plaintiff was asking for help for other veterans than himself. The next day plaintiff went to Dr. Patterson's office for an unscheduled "appointment." Outpatient therapy was initiated. Plaintiff had what Dr. Patterson termed a "classic" case of post-traumatic stress disorder.
Plaintiff met Dr. Patterson approximately 25 times for formal therapy. As stated, the last visit occurred on May 24, 1983. They spoke frequently on the phone as well. Plaintiff called Dr. Patterson at home and Dr. Patterson visited plaintiff at home. They also met for meals.
Dr. Patterson testified that none of these visits was purely personal. Vietnam was usually discussed, but there were also other problems in plaintiff's life which were discussed. A doctor/patient relationship was maintained. A medical record was kept with progress notes, although Dr. Patterson conceded he had difficulty solidifying a treatment program because of the many problems which plaintiff faced.
Plaintiff went on a fishing trip to Canada in 1983. When he returned he called Dr. Patterson and said that he was terminating therapy. According to Dr. Patterson, at that point the doctor/patient relationship ended and no therapy was provided thereafter.
Nevertheless, contacts continued between plaintiff and Dr. Patterson sporadically over the following years. Sometimes months passed without contact. In 1987 there was virtually no contact. However, there were other periods with much more frequent contact. Dr. Patterson termed the relationship a social friendship, like some he had maintained with other veterans. There was no treatment plan. There were no progress notes and no written assessments. No professional services were rendered, in Dr. Patterson's view. However, some notes of visits were made in his appointment book. He referred plaintiff to another doctor for counseling when plaintiff was in a marital crisis, and he did not attempt to assist plaintiff with an alcohol problem. Plaintiff attended a different program, outside of the VA, for that situation in 1985. It should be noted, however, that Dr. Patterson did not specialize in either marital counseling or alcohol counseling.
During the alleged "social" relationship, plaintiff and Dr. Patterson exchanged birthday wishes and Christmas cards. Dr. Patterson visited plaintiff at plaintiff's home and attended some family gatherings. They had lunch or dinner or just coffee from time to time. Plaintiff sent flowers when Dr. Patterson had surgery. Dr. Patterson spoke with plaintiff's father concerning a medical problem they had in common. Plaintiff and his wife dropped by Dr. Patterson's office for an impromptu visit. Dr. Patterson made a trip to Junction City to see plaintiff make a speech. Dr. Patterson estimated that he initiated half of the visits and plaintiff initiated the other half.
Plaintiff testified that "official therapy" with Dr. Patterson had ended after May 1983. Plaintiff stated that he liked Dr. Patterson as a friend and that they spoke about any subject, including each other's problems. Often, but sometimes to the distress of plaintiff, their discussions would turn to Vietnam. Plaintiff stated that he considered Dr. Patterson as someone he could call for help and advice as a friend and a patient. Plaintiff testified that although it was not formal therapy, he and Dr. Patterson considered it therapy.
When plaintiff completed an admission form to the inpatient PTSD unit on May 18, 1995 he was asked to list previous treatment for substance abuse and for PTSD. Plaintiff wrote: "P.T.S.D. — one on one with Dr. Tom Patterson — December 82 — May 83." Plaintiff did not mention his alleged post-1983 "therapy" with Dr. Patterson on the form. Nor did he mention it to Dr. Gimple and Dr. Dattore when they treated plaintiff after 1983. There has been evidence presented to this court previously that plaintiff complained to a Dr. Horne between December 1992 and July 1993 that at one or more times before Dr. Patterson asked plaintiff to kiss him. There is no evidence that Dr. Patterson said this was therapy or that plaintiff considered it to be therapy. When plaintiff made the same complaint to a Dr. Penn, who also worked at the VA, Dr. Penn was upset and advised plaintiff to contact a lawyer.
Plaintiff's claims
Plaintiff's contentions within the final pretrial order are that Dr. Patterson negligently administered psychiatric care during the formal in-house therapy in late 1982 and part of 1983. Plaintiff further contends that the "consultations" and therapy in a social context performed by Dr. Patterson outside the office were negligent and improper. Plaintiff also asserts that the United States is liable vicariously for the alleged negligent conduct of Dr. Patterson in addition to being liable for failing to properly supervise his conduct.
One part of plaintiff's claims is that Dr. Patterson asked plaintiff to kiss him and that on one occasion plaintiff acceded to the request. The date of the kiss is unclear though it probably occurred between 1989 and 1992. Dr. Patterson denies that this happened.
Westfall Act
Under 28 U.S.C. § 2679(d)(1):
"Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States . . . and the United States shall be substituted as the party defendant."
Section 2679(d)(3) provides for the situation facing the court at this moment:
"In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment."
The burden of proof is on those parties who are contesting the Attorney General's certification. See Heuton v. Anderson, 75 F.3d 357, 361 (8th Cir. 1996).
Legal standards
Scope of employment in this case is determined on the basis of Kansas law, which employs the following standard:
"[A]n employee is acting within the scope of the employment if the employee is performing services for which the employee has been employed or is doing anything reasonably incidental to the employment. The test is not necessarily whether the specific conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it."
Commerce Bank of St. Joseph v. State of Kansas, 833 P.2d 996, 999 (Kan. 1992) (citing PIK Civ.2d 7.04).
The following cases from Kansas provide some insight as to how this standard has been applied. In the Commerce Bank case, the court held that a grain inspector was not acting in the scope of his employment when he took bribes in return for warning when "surprise" grain department audits were going to occur and how they would be conducted. In Williams v. Community Drive-in Theater, Inc., 520 P.2d 1296 (Kan. 1974), the court reversed summary judgment for an employer and held that there was a fact-issue as to whether an employee of a drive-in theater acted within the scope of employment when she shot and injured a theater patron who the employee thought was threatening a fellow employee. In Williams, the court not only referred to the standard in P.I.K. 7.04, but also considered whether the employee was motivated entirely by personal reasons or by a desire to further the employer's business. 520 P.2d at 1301-02. In Wesley v. Don Stein Buick, Inc., 42 F. Supp.2d 1192 (D.Kan. 1999), a car dealer was not found vicariously liable for an assault by a car salesman. The court noted the absence of evidence that the car salesman served any kind of security function or was otherwise attempting to further the dealership's business. This distinguished the case from the Williams case. In Hollinger v. Jane C. Stormont Hospital, 578 P.2d 1121, 1130 (Kan.App. 1978), a janitor's practical joke upon a newspaper delivery and salesperson at the workplace was considered outside the scope of his employment.
Another Kansas case with a scope of employment question is Focke v. United States, 597 F. Supp. 1325 (D.Kan. 1982). There, this court held that a social work associate with very limited duties and none involving therapy and counseling, was acting outside the scope of his employment when he engaged in sexual activity with the wife and daughter of a mentally ill patient. Of course, in the case at bar, for a time (how long is in dispute) Dr. Patterson did have the duties to provide therapy and counseling.
Kansas case law has also spoken regarding the existence and termination of a doctor/patient relationship. In Capps v. Valk, 369 P.2d 238, 240 (Kan. 1962), the court stated:
"the relationship of physician and patient continues until it is ended by the consent of the parties, revoked by the dismissal of the physician, or until his services are no longer needed. A physician has a right to withdraw from a case, but if he discontinues his services before the need for them is at an end, he is bound first to give due notice to the patient and afford the latter ample opportunity to secure other medical attendance of his own choice."
A patient's subjective perception is not controlling in determining whether a doctor/patient relationship exists; objective factors must be considered. See State v. Pitchford, 697 P.2d 896, 900 (Kan.App. 1985) (applying the physician-patient privilege under K.S.A. 60-427). The question does not turn upon whether there has been voluntary consultation, but whether the encounter is "for purposes of treatment." Id.
Analysis
In the instant case, we conclude that Dr. Patterson did not act within the scope of his employment after formal therapy ended in May of 1983, and particularly not years later at the time of the alleged kissing incident. We reach this conclusion for the following reasons.
First, plaintiff terminated the doctor/patient relationship in 1983 when he informed Dr. Patterson that he did not wish to have further formal therapy. The relationship which continued was that of a friendship, albeit a friendship with someone who was a trained psychiatrist. The support or advice which Dr. Patterson rendered was in the nature of the support or advice which a friend might render, the only difference being that Dr. Patterson might be considered to have better credentials for giving advice than most friends. However, neither his training nor the history of a doctor/patient relationship is sufficient in our opinion to transform any advice given by Dr. Patterson into treatment or therapy rendered in the scope of his employment. It was not part of an organized plan of therapy or treatment. It did not occur on regular occasions. There was no accompanying paperwork or other indicia of professional service to suggest that therapy or treatment was occurring. We recognize that unscheduled "unorganized" emergency treatment may be given by a doctor to a patient and be considered part of a doctor/patient relationship. We further recognize that Dr. Patterson may have engaged in emergency crisis intervention. But, the visits which occurred between plaintiff and Dr. Patterson after May 1983 do not appear to be ones in which emergency therapy or treatment were provided.
Friends may call other friends during times of depression, loneliness or personal troubles. The fact that the friend being called is a psychiatrist does not turn his actions or advice into treatment or therapy. Moreover, there is nothing in the record which indicates that the alleged kissing incident occurred at a time of particular crisis where treatment or therapy was being sought from Dr. Patterson on an emergency basis. The kissing incident, assuming it occurred, appears to be an event where a friend, who happened to be a psychiatrist, made an improper advance — not an event where a psychiatrist, acting as a psychiatrist, made an improper advance.
Plaintiff argues that Dr. Patterson improperly managed the transference phenomenon, particularly with regard to the kissing incident. An example of transference is the shifting of emotions a patient may feel toward a parent, for example, to a psychiatrist, so that the psychiatrist is viewed by the patient as having the same kind of moral authority over the patient as a parent. See Simmons v. United States, 805 F.2d 1363 (9th Cir. 1986).
We do not believe transference provides a sufficient reason to extend the life of a doctor/patient relationship indefinitely, particularly under the circumstances of this case. There appears to be no claim in this case that the alleged kiss was at the time asserted by Dr. Patterson to be part of a course of treatment or therapy. So, while transference may be abused to disguise malpractice as legitimate treatment, that does not appear to be what is alleged here. Instead, plaintiff is attempting to use the concept of transference to contend that what happened between plaintiff and Dr. Patterson years after the termination of formal therapy was still part of a doctor/patient relationship. The court finds little support for this "once a patient, always a patient" principle. See Poliak v. Board of Psychology, 63 Cal.Rptr.2d 866 (Cal.Ct.App. 1997).
Finally, we note that in a somewhat comparable context, it has been stated that sexual harassment is not within the scope of a supervisor's employment. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 757 (1998); Miller v. Brungardt, 916 F. Supp. 1096, 1101 (D.Kan. 1996); see also, Hicks v. Gates Rubber Co., 833 F.2d 1406, 1417-18 (10th Cir. 1987). We find no grounds for making the alleged kissing incident an exception to this rule. Dr. Patterson's employer understood that Dr. Patterson had social friendships with former patients. It was understood that Dr. Patterson performed services outside of the medical center's campus and at irregular hours. It was known that Dr. Patterson tried to assist Vietnam veterans in ways which did or did not involve therapy. It was also known that transference is a phenomenon that psychiatrists must manage properly. Knowing all of these facts does not make it fairly foreseeable that Dr. Patterson would make a sexual advance upon a former patient or make such an advance reasonably incidental to his employment under Kansas law.
In Williams, it may have been foreseeable that an employee would overstep her bounds in an effort to maintain security on the grounds of the drive-in theater. There, the motivation for the action was arguably to further the employer's business. The instant case is different. It may not be "fairly foreseen from the nature of the employment and the duties relating to it" that Dr. Patterson would make a sexual advance upon a former patient in a social setting. If this happened, it was not motivated to further the business of the VA.
Conclusion
The motion to modify the certification of scope of employment made by the Attorney General shall be granted only to the extent stipulated by the government. In other words, it shall be certified that Dr. Patterson was acting within the scope of his employment through May 24, 1983.
As mentioned previously, there are findings in this order which obviously relate to the substance of plaintiff's claims. However, this case is not presently before the court upon a motion for summary judgment, and the court does not believe it would be proper to treat it as such. If defendants believe other motions should be filed in this matter, such motions should be filed by February 1, 2001, responses due by March 1, 2001, and replies by March 8, 2001. Trial in this case shall be set for April 23, 2001.
IT IS SO ORDERED.