1

Ms. D annen hold die d after su it was file d and a substitu t e

complaint was filed by her Executrix.

FILED

November 17, 1998

Cecil Crowson, Jr.

Appellate Court

Clerk

IN THE COURT OF APPEALS 

AT KNOXVILLE

ESTATE OF SHIRLEY J. DANNENHOLD, ) KNOX COUNTY

by her Executrix, MARGARET ) 03A01-9710-CV-00443

HENSLEY )

)

Plaintiff-Appellant )

)

v. ) HON. WHEELER ROSENBALM,

 ) JUDGE

KNOXVILLE PATHOLOGY 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 KNOXVILLE FOR APPELLANT

EDWARD G. WHITE, II, and AMY V. HOLLARS OF KNOXVILLE FOR APPELLEES

 O P I N I O N

 Goddard, P.J. 

In this cause Shirley J. Dannenhold1 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 medical malpractice incident to the misreading of a 1993 pap smear by Louise

Geldmeier, who inaccurately issued a negative report rather than a positive one.2

The complaint as to the Defendants in this appeal was predicated upon two

theories. First, the doctrine of loaned servant, it being the contention of the Plaintiff that Ms.

Geldmeier, although employed by Fort Sanders, was loaned to the Defendants. The second was

the independent negligence of the Defendants in failing to adequately train and supervise those

interpreting the specimens submitted for examination.

The Trial Judge’s grant of summary judgment was predicated upon his

determination "that the record fails to demonstrate a genuine issue of material fact regarding a

deviation from recognized standards of acceptable professional practice on the part 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

theory. The Trial Court denied this motion without comment as to that theory.

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 issues of fact presented as to the defendants' responsibility

for the negligence of an agent and the independent negligence of these defendants.

A. Was the cytotechnologist who misread the pap smear slide

submitted on Shirley Dannenhold the agent and/or borrowed servant
3

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 and 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 pathologist that disputed the defendants'

interpretation of their duty in the operation of this laboratory and

particularized several specific deviations from the standards of

acceptable professional practice by the defendants.

III. Was there a genuine 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 practice caused the erroneous report to be issued without 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 Dannenhold.

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 appeal

was denied by the Trial Court. The motion was predicated upon an unrelated case 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. Hall, 847

S.W.2d 208, 214 (Tenn.1993), the leading case by the Supreme Court on the subject: 

Rule 56 comes into play only when there is no genuine 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 m ade 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 factual dispute exists; (2) whether the disputed fact is material to

the outcome of the case; and (3) whether the disputed fact creates a genuine issue

for trial. 

The foregoing authority mandates that notwithstanding the contrary proof placed

in the record by the Defendants, we adopt as the facts necessary for disposition of this appeal the

facts contained in the record and set out in the Plaintiff's brief, which we have checked for

accuracy. We have, however, edited the Plaintiff’s statements of the facts slightly, to delete

assertions of undisputed proof as to various facts, and to delete reference to hearsay testimony of

Dr. Gary Cooper, which we do not believe would be admissible as to a substantive issue at trial.3

Footnotes in the portion of the brief we quote are included in this text:

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

Sanders Regional Medical Center (hereinafter referred to as “Hospital”) to

provide management services and physician coverage 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 department is the department of the laboratory that processes pap

smears submitted to the hospital laboratory for examination and diagnosis.

There were three cytotechnologists employed in the cytology department

and the pathologists who were members of Knoxville Pathology Group, P.C.

rotated on a daily basis the duty of the technical supervisor for cytology, which is

the management position that directly supervised the cytotechnologists, and this

pathologist would also render the opinions on the diagnostic results of all pap

smear specimens submitted for examination that day. The cytotechnologists were

paid employees of the Hospital, but a large portion of their time was spent each

day performing pre-screen readings on slides, the reports for which would be

issued by members of the Knoxville Pathology Group, P.C. as their diagnostic

opinions for the slides submitted.

In 1991 and in 1993 pap smear slides on Shirley Dannenhold were

submitted by her gynecologist to the defendants for interpretation in connection

with her routine physical examinations. On both occasions the slides were

reported as negative for any cancer cells. Subsequent review of these slides

demonstrated that both slides in fact did show adenocarcinoma in-situ that 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. Dannen hold 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 sought treatment from a different physician in early

1994 and her pap smear sample was submitted to a different laboratory, and her

cancer diagnosis was reported in January 1994. Treatment ensued, but at the time

of diagnosis the cancer had already become invasive. In May of 1994 Mrs.

Dannenhold saw a segment on the television news show “Primetime” that

reported laboratory practices that had caused positive pap smears to be reported as

negative. She contacted her former gynecologist and asked whether her previous

slides could be reviewed and her physician made the request to defendants 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 slides were positive for adenocarcinoma in-situ

of the cervix.

The pathologists who issued the 1991 and 1993 reports did not actually

view either of the slides, but on both occasions issued the negative diagnosis by 

relying on the pre-screen reading given the slides by a cytotechnologist.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, regardless of whether the

slide was actually read by the pathologist or reported based only on the pre-screen

reading given by the cytotechnologist. 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 pathologist who would be

issuing the reports for that day. If Louise Geldmeier had simply noted the

presence of “reactive change” on the slide, the slide should have been designated

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 diagnosis had been made even as late as 1993, while the

cancer was still a stage 1 adenocarcinoma of the cervix, Mrs. Dannenhold would

have expected a cure rate of 85-90 percent. The delay in diagnosis that resulted

from the erroneous pap smear report of 1993 caused Mrs. Dannenhold’s highly

curable cancer to progress to an invasive and terminal cancer that was expected to

claim her life.5
6

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. Vanderbilt 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 surgical staff at Nashville General Hospital “was

furnished by Vanderbilt University under a contract with Metropolitan Government of Nashville

and Davidson County.” Our Court specifically addressed the loaned 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 employer. 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 another 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 general

employer for some purposes and yet be under the control of a special employer

for others. Likewise it sometimes happens that a particular work in which the

servant is engaged may be properly considered as the work or business of both

the general employer and the special employer.

The question is difficult. It is considered at some length in Restatement

of Agency, § 227. We take the following from Restatement as a satisfactory

rule: “Since the question of liability is always raised because of some specific

act done, the important question is not whether or not he remains the servant of

the general employer as to matters generally, but whether or not, as to the 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 employer in case of conflict of orders. The question is

as to whether it is understood between him and his employers that he is to

remain in the allegiance of the first as to a specific act, or is to be employed in

the business of and subject to the direction of the temporary employer 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 generally a question of fact for the jury, the

unambiguous agreement between the parties made it a question of law, and thereafter opined as

follows (at page 417):
7

The agreement between Vanderbilt and General provides that the

residents, as members of the medical staff, were accountable solely to General;

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

all residents were to be supervised by and accountable to General.

. . . .

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 negligence on the part of the surgical

team could not be imputed to Vanderbilt.

In the case at bar the contract between Fort Sanders and the Radiology Group

contained no such specific language.

We also note that the Defendants were the ones that provided the instructions to

those testing the pap smears as to how they were to be prepared and were to be read.

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

Knoxville Radiology Group did not contain the unambiguous provisions as were present in

Parker, this case is distinguishable and a question of fact is presented as to whether Ms.

Geldmeier was a servant loaned by Fort Sanders to the Defendants.

Finally as to this question, we point out that under certain circumstances an

employee may be the servant of a general employer and also a special employer. Parker, supra.

As to the second part of the second issue, it is undisputed that the Defendants

complied with the Federal Clinical Laboratory Improvement 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 accepted practice regarding review by a pathologist, he was predicating his

testimony on an inference he drew from a fact he assumed (cytotechnologist’s markings made by
8

the cytotechnologist when the 1993 slide was examined), which the record shows without dispute

was not true.

As to the second sub-section of issue two, the proof shows that under regulations

promulgated under the CLIA, the Defendants had a duty to adequately supervise the

cytotechnologists, and to this end the regulations require that a pathologist review a random

selection of ten percent of all slides found by the technicians to be negative. The undisputed

proof supports the Defendants' contention that this requirement was honored. 

The Plaintiff’s expert also found fault with the method used by the Defendants 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 rather

than those that unquestionably appeared negative. The expert apparently reasons that Mrs.

Dannenhold's pap smear would have been drawn had the method he suggested been employed. 

We find that such a conclusion would be pure speculation and that the Trial Court was correct in

sustaining the Defendants’ motion for summary judgment as to this point.

The third issue attacks the finding of the Court that there is no “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 testimony of Dr. Matthew Kohler, 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 foregoing reasons the judgment of the Trial Court is vacated insofar as it

addresses the loaned servant theory and remanded to the Trial Court for further proceedings not

inconsistent with this opinion. The judgment of the Trial Court is affirmed as to other theories
9

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

Defendants.

_______________________________

Houston M. Goddard, P.J. 

CONCUR:

________________________________

Herschel P. Franks, J.

________________________________

Don T. McMurray, J.