Opinion
Case No. 96-4167-RDR.
April 9, 2001
MEMORANDUM AND ORDER
This order constitutes the court's findings of fact and conclusions of law following a bench ruling granting defendant's motion for judgment under FED.R.CIV.P. 52(c) at the close of plaintiff's evidence at trial.
This is a Federal Tort Claims Act case alleging medical malpractice, loss of a better chance of recovery and negligent supervision against defendant for actions arising from plaintiff's care through the Colmery O'Neil Veterans Administration Medical Center. During pretrial this case was consolidated with Case No. 96-4183, which was a state tort action removed from state court against Dr. Tom Patterson and the Colmery O'Neil facility. The Colmery O'Neil Center was dismissed as a defendant in Case No. 96-4183, and the United States was substituted as a defendant for some of the claims against Dr. Patterson because those claims involved actions taken within the scope of Dr. Patterson's employment as a psychologist for the Department of Veterans Affairs (VA). Ultimately, the court granted summary judgment in favor of Dr. Patterson on statute of limitations grounds in Case No. 96-4183. Since the claims against the United States in Case No. 96-4183 were the same as the claims against the United States in this case, the court closed Case No. 96-4183 and proceeded with the trial of this case.
FINDINGS OF FACT
1. Plaintiff is a veteran of the Vietnam War. He enlisted in the Marine Corps after high school in June 1966. By October 1966 he was in Vietnam. According to plaintiff's undisputed testimony, he was in sustained combat for approximately 11 months. He fought in terribly difficult terrain and climate. His unit suffered high casualties. He was involved in many firefights and was the battalion tunnel rat. He killed many enemy soldiers, engaged in hand to hand combat, and was required in one incident to use the bodies of dead comrades as a barrier against attack upon his foxhole. He left Vietnam after approximately 13 months because of wounds suffered in combat.
2. When plaintiff was honorably discharged from the Marines, he returned to his home town, Topeka, Kansas. It was 1968. He was married before his formal discharge. After his discharge plaintiff applied for a disability pension but was turned down. Plaintiff began working for the U.S. Postal Service.
3. Plaintiff's first marriage lasted about five or six years. Two children were born during the marriage. Plaintiff and his first wife argued frequently. Plaintiff has attributed the failure of the marriage to his drinking and drug use.
4. Plaintiff drank alcohol to excess and used marijuana on a daily basis after returning from Vietnam. Some have considered this a means of subduing the sleeping problems and hypervigilance plaintiff has suffered since returning from Vietnam. Other members of plaintiff's family also have had trouble with alcohol.
5. Plaintiff has suffered from nightmares, cold sweats, intrusive thoughts, and flashbacks related to his Vietnam experience since returning from Vietnam. This has made sleeping very difficult for plaintiff. The nightmares are so intense that plaintiff can react violently in his sleep.
6. Plaintiff remarried in 1975. He had a daughter in this second marriage. Plaintiff and his second wife have not slept together for the last 19 years of their marriage because of the nightmares plaintiff has suffered.
7. In November 1982, plaintiff visited the Vietnam Memorial Wall for its dedication. Plaintiff's status as a Vietnam veteran received some publicity about this time. Plaintiff was contacted by other Vietnam veterans who asked if he could refer them to some agency for help. Plaintiff made contact with Dr. Tom Patterson, a psychologist with the VA at the Colmery O'Neil Medical Center. Dr. Patterson was on the Governor's Advisory Committee for Veterans Affairs and was quite involved in Vietnam veterans programs. They first met at a Topeka restaurant in the evening hours.
8. Plaintiff's personal and emotional problems, which seem to have simmered constantly and boiled occasionally through the years, began to boil up in December 1982. Plaintiff argued with his wife and with his boss at work. He left his job early. He was feeling depressed and suicidal. Plaintiff's visit to the Wall or an incident where his combat helmet was returned to him by a war reporter in December 1982 may have partially caused these feelings. Plaintiff drove out to the VA and met with Dr. Patterson. Dr. Patterson took time to meet and counsel with plaintiff. He had lunch with plaintiff. Plaintiff then became an outpatient client of Dr. Patterson through the VA.
9. Dr. Patterson became the first of several mental health professionals who determined that plaintiff suffered from post traumatic stress disorder (PTSD). He scheduled outpatient therapy with plaintiff approximately once a week. He also shared other meetings and phone calls with plaintiff.
10. Plaintiff felt that he benefitted from Dr. Patterson's outpatient therapy. He revered Dr. Patterson and credited Dr. Patterson with saving his life. At the same time, plaintiff testified that he hated the physical contact which occurred during the therapy sessions. Plaintiff testified that Dr. Patterson hugged him at each session and later began to kiss him on the neck. Plaintiff disliked this so intensely that, on the eve of going on a fishing trip to Canada, plaintiff called Dr. Patterson and told him he did not want to continue with outpatient therapy.
11. At this point in May 1983, formal therapy with Dr. Patterson ended. Nevertheless, a social relationship continued on a sporadic basis. Dr. Patterson was a guest at several of plaintiff's family functions. Dr. Patterson and plaintiff exchanged many phone calls. They attended some veterans functions together. They also fished together, attended football games, and shared coffee. They exchanged gifts and cards, including birthday greetings. Sometimes Dr. Patterson instigated the meetings and calls; sometimes plaintiff did. Plaintiff contends that the hugging and kissing on the neck continued during this time, at Dr. Patterson's initiative, when he and Dr. Patterson were alone. These kinds of contacts continued, but waxed and waned, through 1992.
12. Messages of friendship, warmth and love were contained in the cards Dr. Patterson sent plaintiff.
13. Dr. Patterson did not treat plaintiff's drinking and drug problem. Nor did he refer plaintiff for treatment for these problems. Plaintiff's position on such treatment during 1982 and 1983 is not known.
14. In 1985 plaintiff entered a program not affiliated with the VA to kick his alcohol and drug habit. This program was successful in starting a 15-year period of sobriety for plaintiff. Although Dr. Patterson was not part of this treatment program, he was aware of it and sent plaintiff messages of encouragement.
15. In 1987, after seeing a medical doctor for a back injury, plaintiff was referred to a Dr. Dattore for an examination of possible psychosomatic origins for his back pain. During his interview with Dr. Dattore, plaintiff indicated that his prior treatment with Dr. Patterson was quite positive and that his PTSD did not bother him nearly as much as it once did. Nevertheless, Dr. Dattore saw a need for further therapy which plaintiff did not wish to pursue.
16. In 1992, plaintiff saw a Dr. Matthews for marital problems he was having. Plaintiff and his second wife are still married. However, their relationship has had stormy periods and incidents of infidelity. After two and one-half months, Dr. Matthews referred plaintiff to Dr. James Horne, a psychiatrist at the VA, for further treatment of plaintiff's PTSD. By this time, plaintiff had no professional contact with Dr. Patterson and little or no social contact. In addition to therapy Dr. Horne placed plaintiff on medication.
17. At this point, plaintiff had worked for the Postal Service for approximately 24 years. He decided to ask for a medical retirement. Plaintiff was also seeking entry into an inpatient PTSD program at the VA. This was a 12-week program. Dr. Horne recommended plaintiff's admission.
18. The person in charge of screening applicants was a man named Randy Webster. He chose not to admit plaintiff into the program. Dr. Farrell-Higgins of the VA reviewed and affirmed this decision. But, he offered plaintiff the opportunity to reapply. Plaintiff blamed Dr. Patterson for his failure to gain entry into the program. He believed Dr. Patterson was afraid that plaintiff might report the improper hugs and kisses plaintiff alleges occurred during his therapy and meetings with Dr. Patterson. Plaintiff thought this motivated Dr. Patterson to advise Randy Webster not to accept plaintiff into the inpatient program. In fact, Dr. Patterson did speak to Randy Webster and Dr. Farrell-Higgins. Among other things, Dr. Patterson advised that plaintiff was "compensation-seeking." In other words, he felt that plaintiff was strongly motivated to obtain medical and retirement benefits. Dr. Patterson denied that he did anything more than give an opinion when he was asked for one.
19. Dr. Horne supported plaintiff's claim for medical and retirement benefits. Dr. Horne believed plaintiff was 100% disabled by his PTSD condition. At first, plaintiff was given a 50% disability rating. This was later changed to 100% and still later was made a permanent rating.
20. Plaintiff was angry that he was denied admission into the inpatient program. So was Dr. Horne. During a therapy session sometime in the first half of 1993, plaintiff told Dr. Horne about Dr. Patterson hugging and kissing him. This was the first time plaintiff had told anyone other than his wife. Dr. Horne, who had counseled plaintiff regarding difficulties plaintiff had coping with desires for revenge in his life, told plaintiff he could either file a complaint or let the matter go. Plaintiff decided to let the matter go at that point. Dr. Horne, who retired from the VA at the end of June 1993, referred plaintiff to Dr. Penn, another VA psychiatrist, for further therapy.
21. In 1995, plaintiff reapplied for admission into the inpatient PTSD program. He expressed doubts that he would be admitted and again was fearful that Dr. Patterson would block his entrance into the program. At this time, he told Dr. Penn about the hugs and kisses from Dr. Patterson. Dr. Penn told plaintiff that he should consider speaking to an attorney. Indeed, Dr. Penn spoke to plaintiff's attorney about the situation.
22. The screening process for plaintiff's reapplication for the inpatient PTSD program was conducted by a Dr. Book and a Dr. Padilla. Plaintiff told them about Dr. Patterson's hugs and kisses. They were stunned by this report. They took steps to complete a "report of contact" which served to initiate an internal VA investigation of plaintiff's claims.
23. Plaintiff filed an administrative claim asserting his claims in this matter on October 2, 1995.
24. Plaintiff entered the inpatient PTSD program in January 1996. He turned down an opportunity to enter the program sooner. He completed the program.
25. Since 1995 plaintiff has continued to have problems with PTSD. He has continued to have therapy and take medication. In recent months, plaintiff relapsed into alcohol and drug abuse and exhibited psychotic behavior. He has also had a very contentious disagreement with Dr. Padilla who attempted to treat him during this period. His diagnosis is now PTSD with bipolar features. At the time of trial plaintiff appeared stable, rational, and in control of himself.
26. Dr. Penn is retired and has moved to Virginia according to the proffer of plaintiff's counsel. Plaintiff's counsel has also proffered that Dr. Penn said he would not be available for a videotape deposition or otherwise be present to give testimony. Plaintiff's counsel has asked the court to consider Dr. Penn's deposition, given December 2, 1997, as evidence in this case.
27. Although plaintiff has been tormented with PTSD since leaving Vietnam, he has been able to maintain the love and support of his current wife and family. He had a long career with the Postal Service, where he held leadership positions in the postal worker's union. He also maintained leadership positions in various veterans groups. He has been able to travel and to enjoy recreation such as hunting, fishing and skiing.
28. Plaintiff has alleged that one time Dr. Patterson persuaded plaintiff to kiss Dr. Patterson or to accept a kiss from Dr. Patterson on the lips. Plaintiff said this was revolting to him. Plaintiff asserts that Dr. Patterson criticized the kiss and that plaintiff replied that he did not kiss men. In spite of the extraordinary nature of this incident, plaintiff has been unable to specify even the year when it occurred. Plaintiff has also been unable to recall where it occurred — even whether it occurred inside or outside. Plaintiff recounted the incident to his wife, but she also cannot specify when or where the alleged kiss occurred.
29. Dr. Patterson has denied that he kissed plaintiff on the neck or on the lips at any time. He admits hugging plaintiff but not at the frequency plaintiff has described.
30. Plaintiff has been hugged, but not kissed, by other therapists he has seen. Plaintiff has also socialized with Dr. Horne and Dr. Penn, but not nearly to the extent he did with Dr. Patterson. Plaintiff has described the difference between the therapy of Dr. Patterson and that of other doctors in stark terms — — "day and night."
31. Plaintiff told Dr. Horne, Dr. Penn, Dr. Book and Dr. Padilla of the alleged sexual advances by Dr. Patterson because he was angry. He thought that Dr. Patterson had prevented plaintiff's admission into the inpatient PTSD program at the VA.
32. Dr. Horne, Dr. Book, Dr. Padilla and Dr. Farrell-Higgins were unaware of any other reports of sexual misconduct by Dr. Patterson. Nor were they aware that he socialized greatly with his patients.
33. Dr. Patterson was the chief of the psychology service at the Colmery O'Neil Medical Center until approximately 1995, when he retired. Although it has been asserted that Dr. Patterson had no boss or supervision, that claim has not been substantiated.
CONCLUSIONS OF LAW
1. Plaintiff and Dr. Patterson did not have a doctor/patient relationship after plaintiff informed Dr. Patterson that he wished to cease outpatient therapy with Dr. Patterson in May 1983. Their contact thereafter was part of a friendship which developed between them. Although Dr. Patterson took calls at home and made visits outside the office as part of his work as a psychologist at the VA, his visits with plaintiff after May 1983 were not intended or considered to be treatment or therapy for plaintiff anymore than the fellowship and support of any friend is considered of benefit to a person. The court has made this finding in previous orders in this case.
2. Medical malpractice requires proof through expert testimony that a duty was owed by the health care provider to the patient; that the duty was breached; and that a causal connection existed between the breached duty and the injury sustained by the patient. Wozniak v. Lipoff, 750 P.2d 971, 975 (1988). To prove a loss of a chance of a better recovery, plaintiff must prove medical malpractice. Delaney v. Cade, 873 P.2d 175, 178 (1994).
3. Plaintiff did not designate an expert to render an opinion in this case. The only professional opinion was given by doctors who testified in their capacity as treating physicians or persons engaged in the screening process for the inpatient PTSD program. None of the doctors who testified at trial treated plaintiff within nine years of plaintiff's outpatient therapy with Dr. Patterson in 1982 and 1983.
4. There was no expert or treating physician testimony regarding a causal connection between any breach of duty by Dr. Patterson and any injury allegedly sustained by plaintiff. Plaintiff has testified that he could not trust other mental health professionals because he feared they would treat him the same way Dr. Patterson treated him. However, plaintiff did see other treating professionals in 1985, in 1987, in 1992 and many times thereafter. Furthermore, plaintiff has had disagreements with persons such as Dr. Padilla which do not seem related to any mistrust caused by Dr. Patterson. In sum, the harm caused by a lack of trust created by Dr. Patterson's alleged misconduct appears too speculative to serve as a basis for a claim of malpractice.
5. Plaintiff has suffered PTSD for more than 30 years. Over that time he has had stress at work, stress in his marriage, stress dealing with union and veterans issues, stress with his children, and stress when he has had his Vietnam memories stirred. Plaintiff has been able to cope with these stressors with varying levels of success over the years. Plaintiff credits Dr. Patterson with helping him during a time in which he was initially suicidal. Thereafter, plaintiff was able to continue working, stay married and raise his daughter. The success that Dr. Patterson had with plaintiff appears at least as great or greater than the success other therapists have had. In addition, given all the stresses plaintiff has encountered in his life, the court cannot attribute the cause of plaintiff's continued problems to Dr. Patterson's alleged misconduct during six months of outpatient therapy, as opposed to the various other difficulties and stressors plaintiff has encountered in his life.
6. Plaintiff filed his administrative claim in this case on October 2, 1995. The limitations period in this case is two years. Therefore, if plaintiff was injured by the alleged misconduct and was aware of the injury prior to October 2, 1993, then plaintiff's claims are barred by the statute of limitations. See United States v. Kubrick, 444 U.S. 111 (1970). The court has already ruled that plaintiff was aware of the denial of admission into the PTSD inpatient program before October 2, 1993 and that any claim based upon this occurrence is barred by the statute of limitations. The court has also held previously that there was a fact issue of whether plaintiff was aware of any injury he sustained because of Dr. Patterson's alleged sexual misconduct. Plaintiff has testified that he was unaware of any injury until he received therapy from Dr. Penn at the VA and Dr. Penn advised him to talk to an attorney. However, plaintiff was aware of contrasting treatment styles prior to October 2, 1993. The manner in which plaintiff reported the alleged misconduct indicated plaintiff's awareness that Dr. Patterson acted improperly. He also had been informed by Dr. Horne prior to October 2, 1993 that he could file a complaint against Dr. Patterson. Plaintiff is an intelligent man who has been aware of his PTSD condition since 1982. While we recognize the murky difficulties of determining the cause and extent of mental illness, under all the circumstances presented to the court at trial we believe that a reasonable person in plaintiff's position had sufficient notice of wrongdoing and possible injury to bring a claim against defendant prior to October 2, 1993. Therefore, we believe plaintiff's claims are barred by the statute of limitations.
7. It has been asserted that Dr. Patterson's outpatient therapy was not effective because he did not attempt to solve plaintiff's drinking and drug problem. Long before October 2, 1993, plaintiff was aware of his drinking and drug problem. He was also aware that Dr. Patterson could have directed or at least encouraged treatment for the problem in 1982 and 1983. Any claim of malpractice on the basis of this omission by Dr. Patterson is clearly barred by the statute of limitations. In addition, although plaintiff's marriage may have improved, there is no clear evidence that plaintiff's PTSD problem improved once he was able to maintain sobriety. Plaintiff's problems with PTSD appear to have remained stable and at times have become worse since he broke his alcohol and drug habit.
8. The Kansas Supreme Court has stated with regard to a claim of negligent supervision:
"[L]iability results not because of the employer-employee relationship, but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor. The employer is subject to liability only for such harm as is within that risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the harm is caused by the quality of the employee that the employer had reason to believe would be likely to cause harm. However, it is not necessary that the precise nature of the injury alleged by the . . . plaintiff would have been foreseen by the employer."
Kansas State Bank Tr. Co. v. Specialized Transportation Services, Inc., 819 P.2d 587, 598 (1991). In the instant case there is no evidence that defendant was aware or should have been aware of a risk of sexual misconduct by Dr. Patterson against patients or former patients. There has been some evidence that Dr. Patterson socialized too much with patients or former patients. There has been no persuasive evidence that the socialization, apart from the alleged sexual misconduct, was harmful to plaintiff. Nor has there been evidence that defendant had notice or reasonable cause to believe that Dr. Patterson socialized to an excessive or harmful degree with patients. Nor has there been persuasive evidence of harm. In sum, there has been insufficient evidence to establish a claim of negligent supervision against defendant.
9. An issue developed in this case regarding whether the deposition of Dr. Penn should be admitted. Defendant does not contest that Dr. Penn was unavailable to testify at trial. Defendant did object to admitting the deposition at trial because: plaintiff delayed listing it as an exhibit; plaintiff did not designate in advance what portions of the deposition he intended to use; and the deposition contained objectionable testimony. After considering this matter, the court believes plaintiff should be faulted for failing to designate in advance what portions of the deposition plaintiff intended to use. See Local Rule 32.1. Because the deposition contains material to which an objection would be justified, the court believes the deposition should not be admitted as evidence. Even so, the court has carefully reviewed the deposition. No finding of fact or conclusion of law relating to the substance of plaintiff's claims would be altered if defendant's objection to the deposition were denied.
10. In conclusion, the Supreme Court stated in Kubrick that, "It goes without saying that statutes of limitations often make it impossible to enforce what were otherwise perfectly valid claims." 444 U.S. at 125. In this long-pending and difficult litigation, the delay in bringing these claims has been an issue and a problem from the very start. The court has given plaintiff an opportunity to prove that the statute of limitations should not be applied, but it is clear from the evidence before the court that this case was untimely filed. In addition, there has been insufficient expert testimony and other evidence to prove that the alleged misconduct caused plaintiff damage or lessened plaintiff's chance of recovery from PTSD. Finally, there has been insufficient proof of negligent supervision or damage from the alleged negligent supervision. For these reasons, the court has ordered judgment entered in favor of defendant.
IT IS SO ORDERED.