### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Novem ber 13, 200 2 Session

MARISA R. LOVIN v. CHARLES E. NAVE, D.D.S., P.C. Appeal from the Circuit Court for Sevier County No. 2000-140-I Ben W. Hooper, II, Judge FILED JANUARY 22, 2003
No. E2002-00686-COA-R3-CV

Marisa R. Lovin (“Plaintiff”) was involved in a one car accide nt on her w ay

home from Dr. Charles E. Nave’s (“Defendant”) de ntal office. Although Plaintiff has no memory of the accident itself, she claims she suffered an adverse re action to an anesthetic agent administered by Defendan t , which caused the car accident. Plaintiff sued Defendant

for dental malpractice claiming Def endant failed to warn her about potential side effects of the anesthesia a nd did not properly manag e her treatment after administeri ng the a

nesthetic agent. The Tria

l Court gr anted De fendant summary judgmen t. Plaintiff appeals . We affir

m.

Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , J., and C HARLES D. S USANO , J R ., J., joined. Darren F. Mitchell, Knoxville, Tennessee, for the Appellant, Mar isa R. Lovin.
F. Micha el Fitzpa trick, Kn oxville, Te

nnessee , for the

Appellee , CharlesE. Nave, D.D.S., P.C

.

OPINION Background

In February

of 1999, P laintiff

went to Defend ant’s of

fice to h ave a ca

vity filled. Plaintiff testified in her deposition that she arrived at Defend ant’s of

fice at a pproximate

ly 1 1:30 a.m. and was taken “straight back” for her treatment. Before beg inning the treatment, Defendant injected an anesthetic agent, Carbocaine , into Plaintiff’s gums.-2- Plain tiff testifie d it felt lik

e Defe ndant wa s administe

ring mor e anesth etic th a n ne ce ss ar y. She testified her whole head was numb, not just her jaw. Plaintiff also testified Defendant

injected her with “one or two shots or

more.” Sh

e stated “there was a lot [o f injecti ons] putinto [her] ja

w.” Howe

ver, Plai ntiff cou

ld not state whether Defendant injected her twic e, or more than twice.

Defendant

did not specifically r

ecall Pla intiff’s treatme

nt, but tes tified at

his deposition if anything ha

d been unusual or out of

the ordinary dur

ing the treatment, it would have been no ted in the chart. There was no such notation in the chart. De fendant testified his usual procedureis to use a single use vial of Carbocaine and administer the drug very slowly through two injection sites. Defendant stated administering the anesthetic slowly lessens the chance of the patient having a reaction such as increased heart rate. Defendant testified a r eaction of an increased hear t rate ty pically lasts only

two to three minutes.
Defendant

testified he has procedures in place in his of fi ce in case a patient has an adverse reaction to an anesthetic. Defendant explained t hat what he w ould do if a patient had an adverse reactio n to an anesthetic would be to place the patient’s head be low their body, administer oxygen, and call 911. Defendant testified that other than some pa tient s having an increased hear t rate for a few minutes, he has never had a patient suffer an adverse r eaction to an anesthetic.
Plaintiff’s treatment took approximately one-ha lf hour. Plaintiff testified she tol d Defendant

after the treatment she “didn’t feel right, [sh e] didn’t f eel normal with

[her] head.” She askedDefend ant if she

could ea t and was instructe d to wait a couple of hours. Plaintiff cannot remember

specifica lly w hat Defendant said to her when she complained she didn’t feel right, but testified Defendant said something which convey ed to Plaintiff that what

she was feeling was normal and would fade.

Plaintiff walked to her car parked behind the of fice bu ilding whe n she left Defendant’s office. Plaintiff testified she had no problem walking to her car. She used her remo te control to unlock the car

door. Plaintiff testified she did not feel dizzy, but her head fe lt heavy and numb “like [she ] had rock s in it.” Pla intiff al so testifi ed neithe r her ey esight, nor her ha nd -e ye coordination were a

ffecte d in any

way . Befor

e begin ning to dr ive, Plain tiff looke d at her t

ooth in the rear-view mirror.

Plaintiff testified she had no difficulty dr iving, but when she pulled out of the parking lot s he headed in the wrong direction. Plaintiff quickly realized her mistake and turned the ca r around. Plaintiff testified she cannot remember much after turning the car around. She stated “after that point that’s when my mind ge ts so blank on everything .” Plaintiff drove for several miles on
a four-lane road with stop lights. She then turned onto a two-lane back road which she describe d as having “[s]ome

parts [that] are curvy.” However, Plaintiff does not remember driving on either the four-lane road or the two-lane back road. The only other detail Plaintiff

remembers about the drive is passing her friend’s mother’s house shortly before the crash occurre d.-3- At approximately 12:55 p.m., a l most one hour after she left Defendant’s off ice, Plaintiff was involved in a one car accident. There were no witnesses to the accide nt. The police report indicates Plaintiff

wa s unconscious and was transported to the hospital via helicopter. Plaintiff suffered a variety

of injuries as a result of theaccident. She has no memory of the a ccident itself and virtuall

y no memory of appro ximately

the first week af ter the a ccident

. Plaintiff did not develop or regain her memory of being at Defendant’s offic e until months after she wa s released from the hospit

al. Plaintiff’s car never was examined to determine if a mec hanical failure may

have caused the accident.

Plaintiff sued Defendant claiming Defenda nt failed to warn her of possible side effec ts of the anesthetic and failed to appropriately

manage Plaintiff’s care af ter administration of the anesthetic. Defendant filed a motion for summary judgment supported by

Defendant’s expert affida vit stating he did not deviate from the recognized standard of care

. Defend ant filed a brief in support of his motio n for summa ry judgmen t arguing he wa s entitled

to summary

judgmen t as a matter of law because Plaintiff failed to show causa tion.
Plaintiff’s response to Defendan t’s moti on for summary judgment relied upon Defendant’s deposition testimony to argue a material factual dispute existed. Specifically , Plaintiff argued Defendant testified regarding what proc edures he would follow if a patient were having an adverse reactio n to an anest

hetic an d that thos e proce dures we re not fo llowed in t

his instanc e. Thus, Plaintiff argues Defendant fe

ll below the standard of care. Plaintiff’s response wa s not supported by an expert witness aff

idavit.
After hearing argument on De fendant’s motion for summary j udgment, the Trial Courten te re d a n o rd er al lo wi ng Pl ai nt if f a n a dd it io na l t hi rt y da ys from the date of the he aring t o provide a further response to Defendant’s motion for summar y judgmen

t. Plaintiff provided no further response, but instead filed her own motion for summary judgment.
Defendant

responded to Plaintiff’s motion for summary judgme nt by filing a se cond expertaffidavit from Defendant wherein De fendant stated to a

reasonable degree

of denta l certainty Plaintiff did notsuffer an

adverse reaction to the anesthetic administered by Defendant. Defendant’s secondaffida

vit also sta

ted Plainti ff exhibite d no indica tors of a ny a dverse reaction to the anesthetic.
The Trial Court heard the motions for summary judgment and granted Defe ndant’s motion. Plaintiff then appealed to this Court.
Discussion
Plaintiff r aises o ne issue on appeal: whether the Trial Court erred in g ranting summary judgme

nt to Defendant. As our Supreme Court has instructed:-4- The standards governing an appe llate court’s review of

a motion for summary judgment are well settled . Since ou r inquiry involv es purely a

q uestion of law, no presumption of corr

ectness attache s to the low er cour t’s judg ment, and

our task i s confinedto reviewing therecord to deter mine whet

her the r equirem ents of Te nn. R. Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Cowden v. Sovr

a n Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil Procedure 56.04 provi des that s ummary judgmen t is appropr iatewhere: (1) there is no genuine is sue with r

egard to the mate

rial facts relevant t o the cla

im or defense contained in the motion, see Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled to a judgment as
a matter of law on the undisputed facts. See Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993). The moving party ha s the burden of proving that its motion satisf

ies thes e requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn. 1991). When the party seeking summary

judgmen t makes a properl y supported motion, the

burden sh

ifts to the nonmoving

party to set forth

specific facts establishing the existence of disputed, material facts which must be resolved by the trier of fact. See Byrd v. Hall, 847 S.W.2d at 215.

To properl

y su p port its mot

ion, the mo ving pa

rty must eithe

r affir matively negate an e ss ential el ement of

the non-m

oving pa rty ’s claim o

r conclu sively

establish
an af firmative defense. See McCarley v. W est Quality Food Serv., 960 S.W.2d 585,588 (Tenn. 1 998); Robinson v. Omer, 952 S.W.2d 423. 426 (Tenn. 1997). If the moving party fa

ils to negate a claimed basis for the suit, the non-moving party ’s burden to produce evidence establishing the existence

of a ge nuine issu e for tri al is nottriggered and

the motion for summary judgme nt must fail. See McC

arley v. West Quality Food Serv., 960 S.W.2d a t 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving party succ essfu lly negates a claimed basis for the action, the non-moving party may not simply

rest upon the pleadings, but must offer proof to establish the existence of the es sential e

lements of

the claim

. The stand ards go verni ng the ass essment of evidence in the summary judgment context are also well established. Courts must view the ev idence i n the light most favo

rable to the nonmov

ing par ty a nd must also

draw al l reason able inferences in the nonm

oving pa rty ’s f avo r. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v. H

all, 847 S.W.2d at 210-11. Courts should grant a summary judgment only when both the facts and the inf erence s to be dra

wn from th

e facts permit a
reasona ble person to reach only one conclusion. See McC

all v. W ilder, 913 S.W.2d 150, 153 ( Tenn. 199 5); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88-89 (Tenn. 2000) (footnote omitted).

A plaintiff carries the burden of proving se veral elements in a dental ma lpractice claim. A plaintiff must prove “[t]he recognized standard of acce ptable professional practice in the1 “[Tenn. Code Ann. § 29-26- 115] requ ire s expe rt pr oof of all the ele ments of

the t ort.” Kennedy v. Holder , 1 S.W .3d 6 70, 6 72 ( Te nn. Ct. A pp. 1 999 ), overr uled on ot her gr ounds by Seav ers v. Meth odist M ed. Ctr. , 9 S. W.3d 86 (Tenn. 1999). However, an excepti on has been recogni zed when “t he all eged acts of negl igence are so obvi ous that they
come within the common know ledge of lay men.” Id . “Medical malpract ice cases f itt ing i nto th e ‘common knowledge ’ except ion typically in volve unusua l i njuries such as a sponge or needle being left i n the patient ’s abdomen following surgery or wh ere the patien t’s eye i s cut during t he perfor mance of an appendect omy.” Seav ers v. Meth odist M ed. Ctr. , 9 S.W.3d 86, 92 (Tenn. 1999). The cri ti cal quest ion i n common knowledge cases is whether t he instrumental ity caus ing the injury was under the defendant’s exclusive control at t he time the injury o ccurr ed. Id .; Tenn. Code Ann. § 29-26- 115(c) (2002). The case at issue does not fall within t he commo n knowledge except ion, and, therefo re, exp ert pro of is requ ired. -5- profession and the speciality ther eof, if any, that the def

endant practices in the community in whic h the defendant practices or in a similar community at the time the alleg ed injury or wrong ful action
occ urred.” Tenn. Code Ann. § 29-26-115 (a)(1) (2002). I n addition, a plaintiff must pro ve th e defendant “acted with less than or failed to act wit h ordinar y a nd reaso nable ca

re in ac cordanc e with
su ch st andard” and as a result of the negligent act or omission plaintiff “suffered injuries which woul d not otherwise have occurred.” Id . at (a) (2) & ( 3). Plaint iff’s bur den must be

met with competent

evidence. Smi th v. Hale y , No . E2 000 -00 120 3-C OA- R3 -CV , 20 01 T enn . Ap p. LE XIS 136, at *10 (Tenn. Ct. App. March 2, 2001), no appl. perm. appeal filed

. “[I]njury alone does not raise a presumption of the defendant’s negligence.” Tenn. Code Ann. § 29-26-115 (d) (2002).

Our Supreme C ourt has h

eld “whe re exper t testimony

is requir

ed in medica l malpractice cases 1 , a defe ndant who

refute s the plain

tiff’s a llegat ions with e

xpert testi mony

is entitled to summary judgment whe n the plaintiff

produces no rebuttal proof by e xpert testimony.” Seavers v. Metho dist Med. Ctr. , 9 S. W. 3d 86 , 9 8 ( Te nn . 1 99 9) (o rd er de nyi ng petition to rehear) (footnot e added); e.g. , Bowman v. Henard , 547 S.W.2d 527, 531 (Tenn. 1977).
Defendant’s mo ti on fo r s um ma ry j ud gment affirmatively negated two essential elemen ts of Plaintiff’s claim, i.e., breach of standard of ca re and causation. We will discuss each element in turn.

Plaintiff argues there are material factual issues regarding whether Defendant devia ted from the acceptable standard

of care. However, Plaintiff produced no e xpert testimony regar

ding whether Defendant fell below the standar d of care.
Plaintiff asserts Defendant’s own testimony indicates he fell below the standard of
care. Th is is a m is -c ha ra ct er iz at io n o f D ef en da nt ’s te st im on y. When asked what he would do if he believeda patient was having an adver se re action to the anesthetic, Defendant explained the procedures he would follow. Plaintiff claims the

fact De fendant didnot follow

these pr ocedure s in his care and treatment of Plaintiff is an indication Defenda nt fell below the standard of care. Plaintiff’s position assumes she had an adverse reaction to t he anesthetic. However, Defendant specific ally

stated in his second affida v it that it is his expert opinion Plaintiff did not suffer any adverse reaction to the anesthetic. Defendant also stated the basis for his opinion. I f Plaintiff did not s uffer an adverse rea ction, there was no need, under Defe ndant’s deposition testimon y, fo r-6-

Defendant

to follow t

he procedure outl

ined in his deposition. Defend ant’s se cond aff idavit de tails his expert opinion that Plaintiff did not suffer any adve rse reaction to the anesthetic. Plaintiff offered
no expert opinion, by affidavit or otherwise, contrary to Defendant’s. In a

ddition, Defend ant’s fir st affida vit specifically de

nies he fell below the standard of care. Plaintiff produced no expert evidence regarding the standard

of care, or whether Defendant’s car e and treatment fell below that standard. Even viewing the evidenc e in the l ight most f avorabl e to Plainti ff and dr awing a ll reason able inferences in Plaintif

f’s fav or, as we

must, we ho ld Defendant succ essfully negated an essential element of

Plaintiff’s claim. Defendant established by expert opinion that Plaintiff never suffered any adverse reactio n to the anesthetic. Consequently, the re could be no deviation by Defendant from the acceptable standard of profess ional pra

ctice in managing that allege d adverse reaction that never happened.
Defendant also affirmatively

negated the

causation element of Plaintiff’s claim. As discussed above, D efenda nt stated h

is expert op inion in his affidavit that Plaintiff did not suffer any adverse reaction to the anesthetic. Plaintiff offered no countervailing expert opinion by affidavit or otherwise. From the record before the Trial Court, and this Court, it is the undisputed expert opinion that Plaintiff suffered no adverse reaction to the anesthetic. Without any such a d verse r eaction to the anesthetic, Defendant’s alleged negligent act or omission could no t hav e been th e proximate
cause of Plaintiff’s injuries. Therefore, Defenda ntsuc cessfully neg ated that essential element of Plaintif f’s claim as well. Even viewing the evidence in the light most favor able to Plaintiff and drawing all reasonable inferences in Plaintiff’s favor , as we must , we find Defend ant succ essfully negated the causation element of Plaintiff’s c laim.

Defendant

refute d Plaintiff

’s alleg ations wit

h expert te st im on y and negated two essential elementsof Plaintif f’s claim. Theref

ore, Plaintiff cou

ld not simply

rest u pon t he ple adings but was required to offer

rebuttal proof. The Tria

l Court eve

n allowed Plaintiff additiona l time in which to offer

such proof. Plaintiff offered no such proof. Since Plaintiff produced no rebuttal proof by expert testimony creating any g enuine issue as to the material fact s, Defend ant was e ntitled to summary judgme

nt. We affirm the Trial Court’s granting summary judgment to Defendant.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Courtfor su ch furt her pro ceedin gs as may be r equired, if any, consistent with this Opinion and for collection of the costs below . The co sts o n appe al are a ssess ed aga in st the Appe llant, Mar isa R. Lovin, and her surety

.

___________________________________ D. MICHAEL

SWINEY, JUDGE