Opinion
Case Nos. 96-4167-RDR, 96-4183-RDR
April 6, 2001
MEMORANDUM AND ORDER
These cases are now before the court upon defendants' motions for summary judgment. Plaintiff has filed a malpractice action against defendant Dr. Patterson in state court which was removed to this court. That is Case No. 96-4183. Plaintiff has filed an action alleging the United States is liable vicariously for Dr. Patterson's alleged malpractice and liable for negligent supervision of Dr. Patterson. That is Case No. 96-4167. Dr. Patterson was a psychiatrist working for the Department of Veterans Affairs during the times relevant to these lawsuits.
This case involves allegations that Dr. Patterson committed malpractice by engaging in sexual hugs and kisses on the neck with plaintiff while plaintiff was in formal outpatient therapy from 1982 through May 24, 1983. It is further alleged that a more informal doctor/patient relationship continued on a somewhat sporadic basis after 1983 and that during this time Dr. Patterson sent inappropriate cards, at least one of which told plaintiff that Dr. Patterson loved him. The irregular meetings and phone calls continued over many years until, during one encounter, Dr. Patterson allegedly persuaded plaintiff to kiss him on the lips. The exact date of this incident, which Dr. Patterson denies happened, is not clear. However, the alleged kiss so revolted plaintiff that his relationship with Dr. Patterson soon ended. Defendants contend that any relationship between Dr. Patterson and plaintiff after May 24, 1983 was social, not professional, and not unlike relationships which Dr. Patterson maintained with other Vietnam veterans, who were the focus of Dr. Patterson's practice.
A copy of that card and other cards have been attached to the plaintiff's response to the summary judgment motions.
Previously, this court has rejected efforts by defendants to dismiss these cases on statute of limitations grounds. The court held in those orders that fact issues remained as to when plaintiff became aware of the fact of the alleged injury in these cases. The instant motions for summary judgment request that the court enter judgment on the grounds of the statute of limitations for a third time. But, the argument this time is approached from a different angle and incorporates a contention that plaintiff cannot establish a claim for relief for actions after May 24, 1983.
The instant motions argue that the doctor/patient relationship, which forms the basis for most of plaintiff's claims, terminated on May 24, 1983. This date is significant because all sides agree that was the date of the last formal outpatient therapy session between Dr. Patterson and plaintiff. Defendants argue that claims based on the events of May 24, 1983 or before are barred by the statute of limitations, and that claims after May 24, 1983 are invalid because there was no doctor/patient relationship.
Defendants' position is grounded in part upon a finding this court made in connection with a motion to certify Dr. Patterson's scope of employment pursuant to 28 U.S.C. § 2679. The court found that Dr. Patterson was not acting within the scope of his employment in his interactions with plaintiff after May 24, 1983.
The court conducted an evidentiary hearing upon the motion to certify scope of employment. Plaintiff's counsel participated in the hearing. Plaintiff testified at the hearing as well as Dr. Patterson.
The standards governing summary judgment motions are well-established. We have repeated them in previous orders in these cases. We include that discussion by reference here. Because plaintiff has the burden of proving a duty of care in a malpractice case (see Schmidt v. Shearer, 995 P.2d 381, 386 (Kan.App. 1999)), we believe if this case went to trial that plaintiff would have the ultimate burden of proving that a doctor-patient relationship existed at the time of the alleged malpractice.
We read plaintiff's response to the instant motions as making four arguments in opposition to summary judgment, although the arguments are repeated in different ways. We shall discuss these arguments initially with regard to Dr. Patterson's motion for summary judgment.
Patterson's motion for summary judgment
As noted earlier, this motion for summary judgment argues that Dr. Patterson was not acting as plaintiff's doctor after May 24, 1983 or within the limitations period for filing a malpractice claim. Plaintiff's first response to the motion is that there is a fact issue as to when plaintiff became aware of his injury in this case. The court has made this finding previously and we maintain that position. However, the existence of such a fact issue does not bar summary judgment with regard to the malpractice claim against Dr. Patterson if there was no doctor/patient relationship after May 24, 1983.
The second argument plaintiff makes in response to the summary judgment motions is that there is a fact issue as to whether Dr. Patterson and plaintiff shared a doctor/patient relationship after May 1983. In support of this contention, plaintiff makes the following assertions: 1) that when he and Dr. Patterson visited, the subject of Vietnam was frequently mentioned; 2) that plaintiff considered the visits to be therapy, and he believes Dr. Patterson did as well; and 3) Dr. Penn, another psychiatrist at the Department of Veterans Affairs, thought a professional duty may have been violated, and his concerns led to an investigation by the Department. We do not believe these arguments are sufficient to create a fact issue as to whether there was a doctor/patient relationship between plaintiff and Dr. Patterson after May 24, 1983.
We reach this conclusion for the following reasons. First, the general subject of their conversations does not define whether Dr. Patterson was providing therapy to plaintiff. No authority in the record has mentioned that Vietnam would be a necessary topic of therapy or an infrequent topic of friendly discourse. Both plaintiff and Dr. Patterson were active in Vietnam veterans affairs. They shared that interest and history in their relationship. The topic is one which could have been discussed among friends. In addition, there is undisputed evidence that all kinds of topics were discussed by the two men. Plaintiff stated in his deposition that sometimes they spoke about Dr. Patterson's problems, the weather and "just about a little bit of everything." Downey Deposition at pp. 157-159.
Second, plaintiff's opinion as to whether there was a doctor/patient relationship is not binding on the court. See State v. Pitchford, 697 P.2d 896, 900 (Kan.App. 1985) (applying the physician-patient privilege under K.S.A. 60-427); cf., Branson v. Price River Coal Co., 853 F.2d 768, 781-82 (10th Cir. 1988) (plaintiff's personal opinion that she has been subjected to discrimination is insufficient to withstand a properly supported motion for summary judgment). Moreover, plaintiff's opinion regarding what Dr. Patterson believed is not proper evidence. For what it is worth, Dr. Patterson has testified that his visits with plaintiff after May 24, 1983 were not therapy.
Finally, Dr. Penn's concern that a professional duty may have been violated is not persuasive evidence of the existence of a doctor/patient relationship. There are ethical and professional duties which may have been violated under the allegations of this case which do not require a finding of a doctor/patient relationship during the time period in question. Moreover, Dr. Penn has testified in his deposition that he did not know whether there was such a relationship between plaintiff and Dr. Patterson after May 1983. Deposition of Dr. Penn, p. 120.
As discussed in our prior order regarding scope of employment, plaintiff asked that outpatient therapy with Dr. Patterson end in May 1983. Their visits thereafter were not regularly scheduled. Over the years, the conversations waxed and waned in frequency. They were not conducted in an office or on the grounds of the Department of Veterans Affairs. They were not part of a plan of treatment or therapy. Plaintiff did not report to other mental health professionals any contemporaneous or previous therapy by Dr. Patterson after May 1983. In addition, there is no evidence that any sexual advance which occurred after May 1983 was extended or received in the guise of therapy or treatment.
Plaintiff has also relied upon a declaration from Dr. James Horne. This declaration speaks in somewhat conclusory terms about damage plaintiff suffered from his relationship with Dr. Patterson. The court does not believe this statement provides material evidence that there was a doctor/patient relationship between the two men after May 24, 1983.
That plaintiff allegedly suffered damage from Dr. Patterson's actions does not mean there was a doctor/patient relationship when those actions were taken. That such a relationship preexisted the alleged damaging misconduct does not mean the relationship continued after plaintiff asked that there be no more therapy. That plaintiff's friendship with Dr. Patterson was colored by the previous therapeutic relationship through transference or other psychological or social process also does not mean that a doctor/patient relationship continued.
Bad advice or improper behavior may occur in the context of friendships as well as professional relationships. With Dr. Horne's declaration, plaintiff asks the court to find a fact issue regarding a doctor/patient relationship on the basis of alleged harm or misconduct. The court believes the existence of a doctor/patient relationship is dependent on what transpired during the relationship and whether it was regarded as professional therapy or treatment. Dr. Horne's declaration does not address these questions. Listening or talking with someone on an irregular, informal basis in an unprofessional setting is not proof of a doctor/patient relationship even if the hierarchy within and conduct of the discussion is affected by the prior existence of a doctor/patient relationship.
For all of the reasons discussed herein and in the order certifying scope of employment, we conclude that no reasonable jury could find that Dr. Patterson and plaintiff had a doctor/patient relationship after May 24, 1983.
Plaintiff's final argument against summary judgment is that his right to due process has been violated because he has not been given an adequate opportunity to address the scope of employment or doctor/patient relationship issue. Plaintiff and his counsel participated and presented evidence during the scope of employment hearing. Plaintiff has had the opportunity to respond to the summary judgment motion. We believe this is sufficient to protect plaintiff's due process rights.
Plaintiff does not dispute that his cause of action against Dr. Patterson is barred by the statute of limitations if the doctor/patient relationship terminated on or about May 24, 1983. Accordingly, the court shall grant defendant Patterson's motion for summary judgment.
United States' motion for summary judgment
The United States presents basically the same arguments for summary judgment as Dr. Patterson. The court shall deny summary judgment for the following reasons. First, while Kansas has an ultimate statute of repose for a medical malpractice claim — K.S.A. 60-513(c) — there is no ultimate statute of repose for a tort claim under the Federal Tort Claims Act. 28 U.S.C. § 2401. Thus, plaintiff's claims for relief can conceivably extend to the period in 1983 when, it is admitted, Dr. Patterson was acting within the scope of his employment. This assumes, as this court has discussed in previous orders, that plaintiff was not aware of the fact of injury until some time within two years of the date in which an administrative claim was presented. There appears to be an issue of fact as to this point.
Second, contrary to the contention of the United States, all of plaintiff's claims may not depend upon the existence of a doctor/patient relationship between Dr. Patterson and plaintiff. A claim of negligent supervision is not dependent upon a finding of vicarious liability. See L.L.N. v. Clauder, 563 N.W.2d 434, 445 n. 21 (Wis. 1997). The United States asserts, without citation to authority, that it has no duty to supervise the personal friendships of its employees. This may be true. But, the United States could have a duty to supervise the activities of an employee who establishes contacts with patients as an employee and exploits those contacts during "off-duty" hours. See Porter v. Nemir, 900 S.W.2d 376 (Tex.Civ.App. 1995). In Porter, the court held that an employer of a counselor could be held liable for negligent retention if the employer knew the counselor used his contacts with clients to engage in off-premises, after-hours sexual encounters. We do not know if the facts in this case are similar, but the motion for summary judgment does not address this aspect of plaintiff's claim of negligent supervision.
Conclusion
In conclusion, the court shall grant Dr. Patterson's motion for summary judgment. The United States' motion for summary judgment shall be denied.
IT IS SO ORDERED.