Patient can sue for negligent supervision

A VA patient who was seduced into entering a sexual relationship with his therapist may pursue claims that the VA negligently supervised the therapist. The court joined other circuits in holding that discretionary function exception does not categorically bar negligent hiring, supervision and retention claims.

Background

After Dr. Erin Elizabeth Burns, Ph.D., his therapist at the Baltimore Veterans Affairs Medical Center, engaged in a sexual relationship with him, William Lins filed a Federal Torts Claim Act action against the United States. Appellant alleged that the United States was responsible for negligently hiring, supervising and retaining Dr. Burns. Appellant also sought to hold the United States vicariously liable for his therapist’s actions.

The district court held that the discretionary function exception to the FTCA applied to appellant’s negligent hiring, supervision and retention claims, and therefore, the district court lacked jurisdiction because the United States did not waive sovereign immunity as to these claims. The district court further held that Dr. Burns was not acting in the scope of her employment in pursuing a sexual relationship with appellant, and thus, the district court did not have jurisdiction over appellant’s vicarious liability claim.

Negligence

The district court and the United States rely on Suter v. United States,  441 F.3d 306 (4th Cir. 2006), to conclude that this court has held that the discretionary function exception categorically bars negligent hiring and supervision claims. But, crucially, that language (1) did not provide any analysis of the discretionary function exception; (2) was not integral to the holding in that case and (3) was in a footnote. Therefore, the language contained in footnote six of Suter is merely dicta. The district court also concluded that both cases cited in Suter‘s footnote six categorically barred negligent supervision and hiring claims. This court does not agree that these cases unequivocally bar negligent hiring, supervision and retention claims.

The United States also argues that LeRose v. United States — an unpublished Fourth Circuit opinion — supports the contention that negligent hiring, supervision and retention claims are barred by the discretionary function exception. However, not only is LeRose nonprecedential, but the LeRose court relied only on Suter in summarily dismissing the plaintiff’s negligent hiring, supervision and training claims.

The court agrees with its sister circuits that the discretionary function exception does not categorically bar negligent hiring, supervision and retention claims. Rather, such claims should be analyzed pursuant to the clear test laid out by the Supreme Court in United States v. Gaubert, 499 U.S. 315 (1991), which holds that if a policy, statute or regulation mandates a course of action, the discretionary function exception does not apply. 

Here, Dr. Burns violated the clear VA policy against engaging in dual relationships with patients, and her supervisors were aware of this violation but did not act according to the policy. Because the VA acted contrary to a mandatory policy that dictated how it should supervise its employees, its actions cannot be shielded by the discretionary function exception. Consequently, appellant’s negligent supervision claim is not barred, and the district court erred in dismissing it for lack of subject matter jurisdiction.

However, the VA does not have any policies dictating how it hires or retains employees. Therefore, the court agrees with the United States that the VA’s decisions to hire and retain an employee are the type of discretionary decisions that are grounded in public policy.

Vicarious liability

The United States has waived sovereign immunity pursuant to the FTCA only where an employee of the United States was acting within the scope of her employment. 

Dr. Burns’ sexual relationship with appellant could not be considered within the realm of ethical therapy and is properly construed as a “personal action” on the part of Dr. Burns. Consequently, as a matter of law, Dr. Burns was not acting within the scope of her employment.

Affirmed in part, reversed and remanded.

Concurring/dissenting opinion

Agee, J., concurring in part and dissenting in part:

I concur in the majority’s ultimate disposition of the negligent hiring and retention claims, as well as the holding on the vicarious liability claim. 

The majority concludes that the discretionary function exception does not bar Lins’ negligent supervision claim. Because this conclusion is both inconsistent with this court’s precedent and misapplies the Supreme Court’s discretionary function exception test, I respectfully dissent.

Lins v. United States, Appeal No. 19-2069, Feb. 17, 2021. 4th Cir. (per curiam), from DMD at Baltimore (Hollander). Emily Claire Malarkey for Appellant. Roann Nichols for Appellee. VLW 021-2-067. 31 pp.