1 Ms. D annen hold die d after su it was file d and asubstitu t e

complaint was filed by her Executrix. 

# FILED

November 17, 1998 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT O

F APPEALS AT KNO XVILLE

ESTATE OF SHIRLEY J. DANNENHOLD, ) KNOX COUNTY by her Executrix, MARGARET ) 03A01-9710-CV-00443 HENSLEY ) ) Plaintiff-Appellant ) ) v. ) HON. WHEELER RO SENBALM, ) JUDGE KNOXVILLE PATHOL

OGY GROUP, P.C., ) CARTER MILLER, JR., M.D. and ) BRUCE BELLOMY, M.D. ) ) AFFIRMED IN PART; VACATED Defendants-Appellees ) IN PART and REMANDED

DONNA KEENE HOLT OF KNOXVI LLE FOR APPELL

ANT EDWARD G. WHITE, II, and AMY V. HOL LARS OF KNOXVILL

E FOR APPELLEES

O P I N I O N

Goddard, P.J.

In this cause

Shirley J. Dan

nenhold 1 sues Knoxville Pathology Group, Carter Miller, Jr., M.D., and Bruce Bellomy,2 The original complaint also inc luded as Defendan ts Ms. Geldmeier

and Fort S anders Re gional M edical Cen ter, Inc. A no n-suit was tak en as to M s . Geldmeier and the claim against Fort Sanders was settled.

2 M. D., for medica

l malpractice inc

ident to the misrea

ding of a 1993 pa

p smear by L

ouise Geldmeier, who inaccurately issued a negative r eport rather than a positive one. 2

The complaint as to the Defendants in this appeal was predicated upon two theories. First,

the doctrine of lo

aned servant, it b

eing the conten

tion of the Plaintiff

that Ms. Geldmeier, although employed by Fort Sanders, was loaned to the Defendants. The second was the independent n

egligence of

the Defendants i

n failing to adeq

uately tra in and supervise th

ose interpreting the specimens submitted for examination.

The Trial Judge’ s grant of summar y judgment w

as predicated up

on his determinat ion "that t he record fai ls to demon strate a genu ine issue o f material f act regarding a deviation from recognized standards of acceptable professional practice on the par t of the moving Defendants or a genuine issue of material fact regarding causation of an injury that would not have otherwise occurred as a result of the actions of the moving Defendants." The Plaintiff filed a motion to alter and amend, specifically calling to the Trial Court’s attention it’s loaned servant the ory. The Tri al C our t de nie d th is m oti on w ith out com men t as to t hat the ory.

As already noted, the Trial Court sustained the Defendants' motion for summary judgment, resulting in this appeal wherein three issues are raised:

I. Would it be a denial of due process if the trial court refused to apply the recognized standard of review for a motion for summary judgment in an evenhanded manner.
II. Were there disputed iss

ues of fact pres

ented as to the def

endants' respo

nsibility for the neglig

ence of an age

nt and the indepen

dent negligen

ce of these defe

ndants.
A. Was the cytotechnologist who misread the pap smear slide submitted on Shirley Dannenhold the agent and/or borrowed servant3 of Defendant Carter Miller, the pathologist who issued the negative report as his diagnosis when it is undisputed that the report of pap smear results is a medical opinion that must be issued by the pathologist, and further evidence demonstrates that the cytotechnologist was engaged in the business of a nd was under the supervision of the pathologist at the time she performed the pre-screen reading of the slide.
B. Was there a genuine issue of material fact presented as to the independent negligence of the defendants when plaintiff presented affidavits from a

qualified patholo

gist that disputed

the defendants' interpretation of their duty in the operation of this laboratory and particularized several specific deviations from the standards of acceptable pro

fessional pract

ice by the de

fendants. III. Was there a g

enuine issue of material fact presented as to whether the negligence of the defendants caused injury to Shirley Dannenhold when plaintiff offered expert testimony as to how the specific deviations from the standards of acceptable pra

ctice caused the

erroneous repo

rt to be issued witho

ut a pathologists's review, and it is undisputed that if a pathologist had reviewed the slide the cancer would have been reported, and it is further undisputed that the delay in diagnosis caused a highly curable, noninvasive cancer to progress to an invasive, terminal cancer that has since claimed the life of Shirley Danne nhold.

The first issue is dependent upon a motion in this Court to supplement the record with proceedings in another case. A motion to make the material a part of the record on appea l was denied by the Trial Court. The motion was predicated upon an unrelated ca se that the Plaintiff perceives to be an inconsistent ruling by the same trial judge as in this case , which favored the defendants in a summary judgment motion by the plaintiffs, as distinguished from granting the Defendants’ motion in this case.

In light of our disposition of the first point under issue two and our independent review of the remaining issues, we also deny the motion.

Our standard for review of summary judgment is set out in Byrd v. Ha ll , 847 S.W.2d 208, 214 (Tenn.1993), the leadi ng case by

the Supreme Court o

n the subject:

Rule 56 comes into play only when there is no ge nuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.3 Dr. Cooper was not a member of the pathology group when the

reading s were made in 1 991 an d 1993 . He did , howe ver, exa mine th e slides in 1994 after a question as to their accur acy was raised.

4 Thus, the issues that lie at the heart of evaluating a summary judgment motion are: (1) whether a factualdispute exists; (2) wh ether the dispute

d fact is materialto the outcome of the case; and (3) whether the disputed fact creates a genuine issue for trial.

The foregoing authority mandates that notwithstanding the contra ry proof placed in the record by the Defendants, we adopt as the fac ts necessary for disposition of this appeal the facts contained in the record and set out in the Plaintiff's brief, which we have checked f or
accuracy. We have, howeve r, edited the Plain

tiff’s statements

of the facts slig

htly, to dele

te assertions of undisputed proof as to various facts, and to delete reference to hearsay testimony of Dr. Gary Co

oper, which we do

not believe would b

e admissible as to a

substantive issue a

t trial. 3 Footnotes in the po

rtion of the brief

we quote are inc

luded in this text:

Knoxville Pathology Group, P.C. has an exclusive contract with Fort Sanders Regiona

l Medical Center (

hereinafter r

eferred to as “

Hospital”) to provide management services and physician cover age for the pathology and laboratory departments of the hospital. At all times material to this action, Dr. Bruce Bellomy served as the medical director of the hospital’s on-site laboratory. The cytology depar

tment is the department of the laboratory that processes pap smears submitted to

the hospital labor

atory for e

xamination and diag

nosis. There were three cytotechnologists employ ed in the cytology depar

tment and the patholog

ists who were memb

ers of Knoxville Path

ology Grou

p, P.C. rotated on a daily

basis the duty

of the technical

supervisor for c

ytology , which is the managemen

t position that direc

tly supervis

ed the cytot

echnologists, a

nd this pathologist would also render the opinions on the diagnostic results of all pap smear specimens submitted for examination that day. The cytotec hnologists were paid employees of the Hospital, but a large portion of their time was spent eac h day performing pre-screen re adings on slides, the reports for which would be issued by mem

bers of the Knoxville

Pathology G

roup, P.C. as their d

iagnostic opinions for the slides submitted. In 1991 and in 1993 pap smear slides on Shirley Dannenhold were submitted by her gynecolog ist to the defendants for interpretation in connection with her routine physical examinations. On both occasions the slides were reported as negative for any canc er cells. Subsequent review of these slides demonstrated tha

t both slides in fact

did show adenoca

rcinoma in-situ tha

t should have been detected and reported.4 The 3-year repose provision of Tenn.Code Ann. § 29-26-116(a) had

already passed on the 1991 slide before Mrs. Dannenhold learned that she had cancer, which

ultimat ely led to her disc overy o f the defe ndants ’ neglige nce in reporting her previous pap smears as negative. The cytotechnologi st who read the 1991 slide and the pathologist who issued the negative r eport on the 1991 slides were not named as defendants to this action, and no attempt has been made by the plaintiff to assert a cl aim for recovery of damages for the negligence that took place in 1991. The events of 1991 are st ill relevant evidence, however, in connection with plaintif f’s allegations re garding the independent negligence of the defendants in the operati on and management of this laboratory, and the failure to identify and rem edy an obvious deficiency in the proficiency of the techni cians to whom these defendants ere delegating the task of read ing slides.

5 Mrs. Dannenhold did in fact die in Augu st of 1997, and her substitut ed com

plaint ha s been file d to allow her Ex ecutrix to procee d with this action. 5

Mrs. Dannenhold so

ught treatment f

rom a different p

hysician in e

arly 1994 and her pap smear sample was submitted to a different laboratory, a nd her cancer diagn

osis was reported

in January 199

4. Treatment ensu

ed, but at the time of diagnosis the c

ancer had alre

ady become

invasive. In M

ay of 1994 Mr

s. Dannenhold saw a segment on the television news show “Primetime” that reported laboratory practices that had caused positive pap smea rs to be reported as negative. She contacted her former gy necologist and asked whether her previous slides could be reviewed and her physician made the request to def endants that this be done. At the time of this request Dr. Gary Cooper had joined the defendant pathology group and after he pulled Mrs. Dannenhold’s slides from 1991 and 1993 he issued a supplemental report of the amended diagnosis to the effect that both

the 1991 and 1993 sli

des were positive

for adenocarc

inoma in-situ of the cer vix. The pathologists

who issued the 1991 and 1993 reports d id not actually vie w ei the r ofthe sli des , bu t on bot h oc casi ons iss ued the nega tiv e di agno sis by relying on

the pre-scree

n reading give

n the slides by

a cytotech

nologist. 4 The diagnosis of the pap smear is issued only in the name of the pathologist and the patient is charged the same for the pap smear diagnosis, regardle ss of whether the slide was actually read by the pa thologist or reported based only on the pre-screen reading given by the cy

totechnologist. The cytotechnologists should have recognized the slides to be abnormal in 1991 and in 1993 and should have identified them for further review by the supervising patholog ist who would be issuing the reports for that day. If L ouise Geldmeier had simply noted the presence of “reactive change” on the slide, the slide should have been de signated for review by a pathologist. If a pathologist had read the slides on either occasion, the diagnosis should have been made and reported to Mrs. Dannenhold’s gynecologist. If the diag

nosis had been made even as late as 1993, while the cancer was still

a stage 1 adeno

carcinoma of the

cervix, Mrs. Danne

nhold would have expected a cure rate of 85-90 percent. The delay in diagnosis that resulted from the errone

ous pap smear rep

ort of 1993 cause

d Mrs. Dannenhold’s highly curable cance

r to progress to a

n invasive and ter

minal cancer tha

t was expected to claim her life. 56 As to the issue of loaned servant presented in the first part of issue two, we find that of all the cases cited by the parties, the case of Parker v. Vande rbilt University

, 767 S.W.2d 412, 416 (Tenn.App.1988), is the case more nearly in point factually to the case at bar. In that case, at the time of the alleged negligence, the surgic al staff at Nashville General Hospital “was furnished by

Vanderbilt Unive

rsity under

a contract with Me

tropolitan Govern

ment of Nashville and Davidson County

.” Our Court spec

ifically ad

dressed the loane

d servant question

as follows:

An employee of one employer may become the servant of another and shift the liability for his negligent acts to the second employ er. See Richardson v. Russom Crane Rental Co. , 543 S.W.2d 590 (Tenn.Ct.App.1975). The test to determine whether an employee is a loaned servant of a nother employer has been set out in Gaston v. Sharpe , 179 Tenn. 609, 168 S.W.2d 784 (1943). In Gaston , the court said: [A] servant at a particular time may remain under the control of his gener al employer for some purposes and ye t be under the control of a special employer for others. Likewise it sometimes happens that a particular work in which the servant is enga

ged may be

properly c

onsidered as the w

ork or business of b

oth the general employer and the special employ er. The question is difficult. It is considered at some length in Restatement of Agency, § 227. We take the following from Restatement as a sa tisfactory rule: “Since the q

uestion of liability

is always ra

ised because of

some specific act done, the important question is not whether or not he remains the servant of the general e

mployer as t

o matters gener

ally, but whe

ther or not, as to th

e act in question, he is acting in the business of and under the direction of one or the other. It is not conclusive that in practice he would be likely to obey the directions of the

general employ

er in case of con

flict of orders. T

he question is as to whether it is u

nderstood betwee

n him and his employ

ers that he is to remain in the alle

giance of the f

irst as to a specif

ic act, or is to be e

mployed in the business of and subject to the direction of the temporary employ er as to the details of such act. This is a question of fact in each case.” 179 Tenn. at 614, 168 S.W.2d at 786.

In that case the Court concluded that, although the question whether a servant of one employer has become the servant of another is ge nerally a question of fact for the jury , the unambiguous agreement between the parties made it a question of law, and thereaf ter opined as follows (at page 417):7 The agreement between Vanderbilt and General provides that the residents, as memb

ers of the medica

l staff, were ac

countable solely

to General; General had the right to approve the assignment of all medical staff personnel and all residents wer

e to be supervised

by and acc

ountable to Gener

al.

. . . . In light of the undisputed terms of the written agreement, we hold that the Vanderbilt doctors were the loaned servants of General at the time of the operation on Mr. Parker. Therefore, any neg ligence on the part of the surgical team could not be im

puted to Vanderbi

lt.

In the case at bar the contract between Fort Sander s and the Radiology Group contained no such specific language.

We also note that the

Defendants wer

e the ones that pro

vided the instruct

ions to those testing the pap smears as to how they were to be prepar ed and were to be read.

We conclude in light of the fact that the contract between Fort Sanders and Knoxville Radiology

Group did not conta

in the unambiguou

s provisions as wer

e present in Parker , this case is disting uishable and a que

stion of fact is pre

sented as to wheth

er Ms. Geldmeier was a

servant loaned b

y Fort Sande

rs to the Defenda

nts.

Finally as to this question, we point out that under certain circumstances an employee may be the serva nt of a general employer and also a special e mployer. Parker , supra.

As to the second pa

rt of the second issue, it is undisputed that the Defenda

nts complied with the Federal Clinical Laboratory I mprovement Act, which the Plaintiff’s expert testified was merely a codification of prior law, and although this expert also testified as to a deviation from ac

cepted practic

e regarding

review by a

pathologist, he w

as predicating

his testimony on an inference he drew from a fact he a ssumed (cytotechnologist’s markings made by8

the cytotec

hnologist when the

1993 slide was examin

ed), which the re

cord shows without d

ispute
was not true.

As to the second sub-section of issue two, the proof shows that under regulations promulgated under the CLIA, the Defenda nts had a duty to adequately supervise the cytotechnologists, and to this end the regulations require that a pathologist re view a random selection of ten percent of all slides found by the technicians to be neg ative. The undisputed proof supports the Defendants' contention that this requirement was honored.

The Plaintiff’s e

xpert also found fa

ult with the method us

ed by the De

fendants in selecting those negative slides which were to be reviewed by the pathologist. The proof showed that those that had some indication of abnormality were used in the 10 percent selected r ather than those that unqu

estionably a

ppeared nega

tive. The expert ap

parently r easons that Mrs. Dannenhold's pap smear would have been drawn had the method he sugge sted been employed. We find that such a c

onclusion would be p

ure speculation a

nd that the Trial Cou

rt was correct i

n sustaining the De

fendants’ motion f

or summary ju

dgment as to this po

int.

The third issue attacks the finding of the Court that there is no “genuine issue of material fact r

egarding ca

usation of an injur

y that would n

ot have otherwise

occurred as a r

esult of the actions of the moving Defendants.” The testimony of Dr. Matthew Kohle r, one of the Plaintiff’s expert witnesses, establishes that had a proper diagnosis been made as to the 1993 pap smear, Mrs. Dannenhold had an excellent chance of recovery and that her cure rate was in the range of 85 to 90

percent.

For the foreg

oing reasons the

judgment of the T

rial Court is vaca

ted insofar as it addresses the loaned servant theory and remanded to the Tr ial Court for further proceedings not inconsistent with this opinion. The judgment of the Trial Court is affirmed as to other theories9

advanced. Costs of appeal are adjudged one-half against the Plaintiff and one- half against the Defendants.

_______________________________ Houston M. Goddard, P.J.

CONCUR:

________________________________ Hersc hel P. F ranks, J.

________________________________ Don T. M cMurr ay, J.