A federal judge has ruled in favor of two veterans who sued the government for medical malpractice after claiming they were subjected to unnecessary genital exams while they were patients at the Leavenworth VA.
In separate decisions Monday, U.S. District Judge Daniel Crabtree ruled that VA personnel should have “fairly foreseen” the wrongful conduct by physician assistant Mark Wisner but failed to do so.
Multiple patients had complained to the VA about Wisner’s conduct over the years he treated both veterans.
Wisner was convicted of aggravated sexual battery and aggravated criminal sodomy in 2017 and sentenced to nearly 16 years in prison.
Crabtree awarded a total of just over $538,000 in damages to one of the veterans and just over $1.5 million in damages to the other.
The awards fell short of the millions each man had sought but still marked victories in hard-fought trials requiring them to prove that Wisner was acting within the scope of his employment.
“These cases have touched me in a way that’s probably different from any other case I’ve dealt with in my career, probably because I’m a veteran myself and my heart goes out to these guys,” said the attorney for both men, Danny Thomas.
“Obviously the way the VA treated them was horrible. But also the way the Department of Justice has treated them throughout this litigation has just been inhumane. And to finally get justice for these guys, it’s a feeling I can’t describe how relieved and happy I am.”
A spokesman for the U.S. Attorney’s office in Kansas, which defended the cases, did not immediately respond to a request for comment.
Both cases were tried without a jury before Crabtree via Zoom video earlier this year.
Wisner is thought to have abused as many as 100 military veterans at the Leavenworth VA. More than 80 of them settled their lawsuits last year for a total of $7 million.
But the two veterans who prevailed against the government on Monday held out and chose to take their chances by going to trial.
The government never disputed that Wisner sexually molested veterans of America’s wars in Iraq and Afghanistan. But it claimed it shouldn’t be held accountable for his conduct because it was outside the scope of his employment.
But Crabtree said the test for that was not whether the VA authorized Wisner’s conduct but rather if it was foreseeable. And Crabtree ruled that it clearly was in both cases.
“The Veterans Health Administration (VHA) required a centralized and comprehensive policy on reporting and tracking allegations of sexual misconduct at VHA facilities (among other things),” Crabtree wrote in his findings of fact in both cases. “The Leavenworth VA wholly failed to comply with this directive.”
In fact, Crabtree found, Wisner’s first-line supervisor was unaware he was supposed to review Wisner’s charts and didn’t bother to monitor his activities.
Wisner was the sole primary care provider in a clinic with as many as 1,000 patients.
Both veterans asked Crabtree to order the government to pay for treatment of their PTSD and for the anticipated costs of private health care, arguing that they shouldn’t have to return to the VA.
In the case of the first veteran, Crabtree awarded $228,213 to pay for his PTSD treatment but not the anticipated costs of private care, finding he had not tied that claim to his injuries. In the case of the second veteran, Crabtree awarded him nearly $1.1 million for both the cost of PTSD treatment and the anticipated costs of private care.
Both veterans also sought non-economic damages. The first veteran had sought more than $2.3 million but Crabtree awarded him $310,000. The second sought $5.4 million; Crabtree awarded him $430,000.
Thomas, their attorney, is not through trying cases against the government. Seven more remain on Crabtree’s docket.
Thomas, who in his opening statements called the Wisner episode the largest case of sexual abuse in VA history, said patients with combat PTSD were sexually molested over and over right under the noses of the VA.
Compounding their trauma, he said, was the Justice Department’s willingness to attack their character during the trials and call them liars.
“The Department of Justice says we seek to honor and respect our veterans. No, you don't. No, you don’t, because they’ve been treated like garbage by our government, absolute garbage,” Thomas said.
