A lawsuit brought by one of 100 military veterans who were sexually abused by a physician assistant at the VA hospital in Leavenworth will determine if the federal government is liable for damages in what the plaintiff’s lawyer described as “the largest sexual abuse scandal in the history of the VA.”
“Countless veterans have never gotten their day in court, have never gotten justice,” the lawyer, Daniel A. Thomas, said in opening statements at the federal trial, which began today. “And more importantly, not a single person from the VA has ever been held accountable.”
The physician assistant, Mark Wisner, was convicted at a criminal trial in 2017 of aggravated sexual battery and aggravated criminal sodomy and sentenced to 15 years and seven months in prison. Around 100 of his victims separately filed civil suits seeking damages against the federal government for his actions as an agent of the government.
More than 80 of them settled their lawsuits last year for a total of $7 million. But a few of them refused to settle, and the trial of the first of those cases, which got underway this morning via Zoom video conference, will determine whether the government will have to pay out additional damages.
The case is being tried without a jury in federal court in Kansas City, Kansas, before U.S. District Judge Daniel D. Crabtree. The trial is expected to last through the end of the week.
The plaintiff in the case is identified in court documents only by the fictitious name John Doe.
The government does not dispute that Wisner sexually molested veterans of America’s wars in Iraq and Afghanistan, including Doe, by conducting unnecessary genital and rectal exams on them and then overprescribing opioids and other pain medications to make them dependent on him.
“Indeed, all who have heard about these matters cannot help but be outraged,” Justice Department lawyer Larry Eiser, who represents the government in the case, said in his opening statement. “A sexual predator in the guise of a health care provider preying upon wounded warriors – outrageous.”
But the government says that it should not be held liable because Wisner’s conduct was outside the scope of his employment and because the damages Doe is seeking – payment for a lifetime of medical treatment – are excessive.
“We accept that plaintiff was abused by Mr. Wisner,” Eiser told Crabtree. “We accept his version of the facts of his encounters with Mr. Wisner. We will not dispute that he was subjected to unnecessary, ungloved genital examinations of two to three minutes in duration during each and every one of his nine encounters with Mr. Wisner over a two-year period in 2012 to 2014.”
But Eiser said that the plaintiff’s damage claims were unsupported by the evidence and “untethered to reality” because they asked the government to pay for treatment of mental health conditions and other ailments that preceded the plaintiff’s encounters with Wisner.
Thomas, the plaintiff’s attorney, said that his client’s PTSD was exacerbated by Wisner, whom he said was the subject of numerous complaints that the VA failed to follow up and investigate.
One of Wisner’s patients was admitted to a psychiatric unit after he was overheard threatening to kill Wisner, Thomas said. That patient later killed himself.
“They just didn’t believe the victim,” Thomas said. “It’s a scenario that played out repeatedly with Wisner’s victims over a period of years. One hundred victims over six years.”
Earlier this year, another federal judge, Carlos Murguia, threw out the plaintiff’s claims against the government for negligent supervision of Wisner. Murguia found that the plaintiff had failed to assert that claim during an earlier, administrative part of the case.
The case was reassigned to Crabtree in February after Murguia announced his resignation from the court following his public reprimand for sexual harassment and workplace misconduct.
