### IN THE COU RT OF A PPEALS OF TENNESSEE AT J ACKSON August 28 , 2001 Session
NAT ALY A M AZO R v. KEN NET H ISA ACM AN, D.D.S. App eal from

the Circuit Court fo r Shelby Cou nty No. 306208-5 K

ay Robilio , Judge

No. W2000-01485-COA -R3-CV - Filed

June 6, 2002

This is a dental malpra ctice case. The pa tient visited the defendant dentist in August 1997 for routine root

canal surgery . After the surg ery, the patient began experiencing “constant” pain in the tooth in which the root canal was performed. She was told by the defe ndant de ntist that th is w as pain ordinarily felt after ro ot canal surg ery. In F ebruary 1999, th e patie nt visited an other de ntist who discovered that a piece of a drill bit had be en left inside patient’s tooth during the previous root canal. In December 1999, the patient filed a laws uit against

the def endant dentis t for dental malpr actice. The defendant dentist filed a motion to di smiss, arguing that the patient did not bring the claim within the one year statute of limitations. This motion was granted and the patient now appeals. We reverse, finding that the patienthad one y ear from the ti

me she dis covered or should have dis covered t

he foreig n object in wh

ich to file her l awsuit.
Tenn . R. A

pp . P. 3 A

pp eal as of Righ t; Ju dg m ent o f th e Circu it Co urt R everse d
H OLLY K

IR BY L ILL ARD , J., d elive red t he op inio n of th e co urt, i n whic h W. F RANK C RAWFORD , P.J., W.S., and D AVI D R. F ARMER , J., joined. Patricia L. Penn, Memphis, Tennessee, for the appellant, Natalya Mazor

. R. Sadler Bailey, Memphis, Te nnessee, f or the ap pellee , Kenneth Isaac man, D.D.S.
OPINI ON
Thisis a de

ntalmalpractice ca se. Plaintiff/appellant Natalya Mazor (“Mazor”) visited the defend ant/ appell ee dentist, K

enneth Isaacman, D.D.S . (“Dr. I saacman”), in A ugust 1997 to hav e a routine root

canal perfor

med on her upper right molar. After the surg ery, Mazor began experiencing severe pain in the toot h on which the surgery was performed. When Mazor complained to Dr. Is aacman about the pain in her too th, Dr. I saacman said t hat it was part o f the pain ord

inarily felt after root canal surgery. H owever, the pain continued.1 Ten n. Cod e Ann. § 2 9-26-11 6(a) provides: (1) The sta

tute of limi tations i n malpract ice a cti ons sha ll be one (1) year as set forth in § 28- 3-104. (2) I n the ev ent t

he al lege d injur

y i s not di scove red wi thin s uch one ( 1) y ear peri od, t he per iod of lim itatio n sh all be on e (1) ye ar from the date of suc h d isco very.

... (4) Th e time limitation herein set forth sh all not a pply i n cases where a for eign object has been negligently lef

t in a pa tie nt’ s body , i n which ca se t he action shall be co mm enced within one (1) ye ar af ter the a lle ged i njur

y or wrong ful

act is di scove red or

should ha

ve been disc over ed. -2- InFebruary

1999, Mazor vis ited another dentist, Dr. Gennady Orlov etsky. Af tertaking Xra ys of the tooth, Dr. Or

lovets ky discovered that a piece of a d rill bit had been left i

n Mazor’s too th during the previous root canal surg ery.
InDecemb er 199 9, some two y ears a fter

the ro ot canal

sur ger y was performed, Maz or fi led a dental malpr actice la wsu it ag ainst Dr. I saacman . In

her compla int, M azor

ass erted that “[d]uring po st -s ur ge ry, [Mazor] beg an experiencing excruciating

pain in the too th on w

hich the root

canalwas performed.” She s tated t

hat she visited Dr. Orlov

etsky in February

1999 “in regard to the constant pain she w as experiencing

in her tooth s ince the root canal” s urger y i nAu gus t 1997 . Mazor all eged that she was injured by the

piece of drill b it “neglig

ently left by [Dr. I saacman] in [Mazor’s] tooth.” Mazor alleg ed that

she h ad su ffer

ed permanent i

njury as a re sult

of Dr . Is aacm an’s n eg lig ence. Mazor claime d th at she co nt in ue s to suf fe r e xc ruc ia ti ng pa in an d ha s be en for ce d t o un de rgo addition al dental procedures in an atte mpt to alleviate the pain. Anticipating assertion of t h e applicable one-

year statute of l imitations, Mazor asserted i

n the complaint that: Altho ugh th e date of this

stated complain

t is beyond the terms

stated in the S tatute of L imitations f

or bring ing a claim, Tennes see law provides: “In those cases where medical ma lp ra ct ic e i s as ser te d t o ha ve occurr ed thr oug h neglig ent per

form ance of sur gic al proced

ures , caus e of act

ion accr ues andstatu

te of l imitat

ions commences to run when patient discovers or, in exercise of reasonable care and diligen ce for his own h ealth an

d welf are, should

hav e disc overed th e resu lting injur y .” (citing Tenn. Code Ann. § 29-26- 116 1 ).
Inresp onse

to the c omplai

nt, Dr . Is aac man fi led a mo tion t o dis miss for f ailur e to st ate a claim. In t

he moti on to d

ismi ss, Dr. I saacma

n ass erted t

hat since Mazor alleg ed in

her complaint that she suf fe re d i mm ed ia te ly po st-o pe ra ti ve pain f rom th e root canal s urg ery and th at such pain

was “constant”until the time of filing her complaint, Mazor’s cause o f action accrued imme diatel y after the surgery

and was therefore barred by the applicable one- year statute of limit ations. In resp onse to Dr. Isaacman’s motion to dismiss, Mazor asked the trial court to consider pleadings, discovery2 These documents wer e: 1) M azor’s sw orn an swers to Defend ant’s first set of interro gatories; (2) M azor’s

response to De fendant’s motio n to di smis s; 3) Mazor ’s notic e of f ili ng and the a ff

idav it of Dr. Orl ovets ky ; a

nd (4) Mazo r’s motion to amend her original com plaint and the attached amen ded co mplaint.

3 Th ere is no tra

nscr ipt of

the hearing o n the m otion to dismiss, nor do es the record includ e the parties’
memora nda on t

he motion. -3- and other docu

ments 2 in which she states that the pain subsided after Dr. Isaacman resurfaced the tooth shortly after the su

rgery and did not return until the fall of 1998, becoming more intens e later that winter. Th e trial

court declin ed to co nsid

er the pleadings and ot

her do cument s fil ed after Maz or’s compla int and ruled on Dr . Is aacman’ s mot

ion to dism iss based solely on the allegations conta ined i n the complaint. 3 Dr. Isaacman’s motion to dismiss was granted by the trial court by order dated March 31, 20 01. Th ereafter, M azor filed seve ra l p ost -ju dgm en t m ot io ns, in cl udi ng a motion to amend the judgment under Rule 52.02 of the Tennessee Rules of Civil Procedure and a motion to reconsider under Rule 59.04. E ach of these motions were denied by the trial court by order dat ed Jun e 2, 2002. From these orders, Mazor n ow appea ls.
On a ppeal, Mazor presents several arg uments. Overall, Mazor arg ues that the tri al cour t erred in granting Dr. Isaacm an’s motio n to dismiss. Mazor also argues that the trial c ourt c ommit ted revers ible error in

hearing the motion to dismiss within thirty days fr om the date Dr. Is aacman f iled hi s me mo ra ndu m i n su ppo rt o f hi s mo ti on a nd b y fai li ng t o c ons id er al l d oc um en ts a nd p le ad in gs filed at the time of the hearing on the motion. Mazor next argues that it was reversible error for the trial court to deny

her post-judgment motions to amend or reconsider the judgment in order that she might file an amended compl aint. Finally , Mazor argues that the trial court erred in excluding certain filings from the record

on app eal. O n appea

l, we c onsi der fi

rst w hether the tr ial cou rt err ed in granting Dr. I saacman’s motion to dismiss for failure to state a claim.
A motion to dismis s for f

ailure to state a claim upon which relie f could be granted tests the suf ficiency of the complaint alone

. Wolcotts Fin. Servs., Inc. v. McReynolds , 807 S.W.2d 708, 710 (Tenn. Ct. App. 1990). In Humphr ies v. West End

Terr ace, I nc. , 795 S.W.2d 128 (Tenn. Ct. App. 1990), this Court said:
A motion to dismis s purs

uant to Rule 12 .02(6), T enn. R. Civ . P., for failure to state a claim upon which relief ca n be granted is the equivalent of a demur rer un der our form er common law proce dure and , thus, is a test of the sufficiency of the leading pl ea di ng. Cornpropst v. Sloan , 528 S.W.2d 188, 190, 93 A.L .R.3d 979 (Tenn. 1975). Such a motion admits the truth of all rele vant and material aver

ments contained in the complaint but as serts that such facts d o not constitute a cause of action. C ornpropst , 528 S.W.2d at 190. A compla int should not be di smissed upon su c h motion “unless it appears beyond doubt that the plaintiff can prov e no set of f

acts in support of his claim

that would en

title him to rel ief.” Fuer

st v. Methodist Hospital South , 566 S.W. 2d 8 47, 848 (Te nn. 197 8). In c ons id er in g whet her to di smiss a complaint for failure to state a claim upon which rel ief can be granted, the cour t-4-

should construe the complaint libera lly in fav or of the plaintiff taking all of the allegations of fact therein as true. Hucke by v. S pang ler , 521 S.W.2d 568, 571 (Tenn. 1975).
Id. at 130. See also Riggs v. Burson , 941 S.W.2d 44, 47-48 (Tenn. 1997).
We note firs t that Maz or alleg es in her comp la int that s he was injured as a result of Dr. Isaacman’s alleg ed neglig ence in leavin g a piece of

drill bit in

her to oth. T ennes see Co de A nnota ted § 29- 26- 116( a)(4)

(200 0) s tatesthat “w

here a f oreig n obje ct hasbeen

negligently

left in a patient’s body...theaction

shall be comm enced

within one (1) y

ear after the a

lleg ed inju

ry or wr ong ful act is discover

ed or s hould hav e been d

iscov ered.” Thisstatu

te hasbeen in

terpr eted torequi

re onl y that the plaintiff

bring the acti on wi

thin o ne y ear af te r th e f ore ign obj ec t wa s di sco ver ed or s hou ld ha ve beendi scovered. See Wilson v. E. Tenn. Baptist Hosp. , 1984 Tenn. App. L EXIS 3082, at *4- 5 (Tenn. Ct. App. A

ug 8, 1984) (finding

that plaintiff’s claim was time barred where she did not bring suit within one

y ear of a medical clamp being discovered inside her chest). The legislative history of Section 29-26-116(a)(4) in dicate s that t he one-year period applies from the discovery of the for ei gnobject. In Hall v. Ervin , the Tenness ee Supreme Court examined the legislative debates and stated:
The references [in the legislative deba tes] de a lt with concern over a physician’s leaving “a pa ir o f fo rc ep s in sid e o f you or a spo nge or a nyth in g el se. ..” An amendment to allow one year after discove ry of su ch a “f oreig n obje ct ” wasoffer

ed by a senator. However, a member of a special study committee of the Senate poin ted outthat the bill already contained such a provision. He read aloud the language now bas ic ally cons titut ing T.C.A . § 29-26- 116( a)(4) . The pr opos ed amend

ment w as thereupon withdrawn.
Hall v. Ervin , 642 S.W.2d 724, 728 (Tenn. 1982) (emphasis added). Though Mazor doesnot re fer to thi s st atute i n her complain

t, sh e alleg es clea

rly that he r inju ry was the res

ult of a piece of drill bit n egl igently

left in the too th dur

ing the ro ot canal

sur ger y . On ap peal, Dr. I saacma

n does no t pointto anything

in Mazor’s complaint which would establish that Mazor, as a matter of law, should ha ve discover

ed the presen

ce of the drill bit

prior to th e X-ray in F ebruary 1999. Unde r these circum stanc e s, we must con clude that the tri al court erred i n gran ting Dr. Is aacman’s motion to dismiss. A

ll remaining issues raised by the parties are pretermitte d by this holding

. The decisio n of the t rial co urt is reversed a nd the c ause is re ma nde d fo r fu rth er pro ce ed in gs notinconsistent with thi s Opini on. Cost s of thisappeal are taxed ag ainst the appel lee, Dr. K enneth Is aa cm an , f

or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ HOLLY KIRBY LIL

LARD, J UDGE