### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 29, 2001 Session LINDA F. GR

EENE v. DR. WOOD Y STINSON, D. D.S. Appeal from the Circuit Court for Jefferson County No. 16,369-I William M. Dender, Judge FILED DECEMBER 3, 2001 No. E2001-00628-COA-R3-CV

The plaintiff was under the care of the def endant dentist for the crowning of six teeth. As a part of this pro cedure, the defendant placed a “tray ” filled with impression material in her mouth. The plaintiff claims that she swallowed some of the impression material which, according to her, later had to be surg

ically removed from her intestine s. She sue d the dent ist, alleging that he violated the applica ble standard of care in a number of wa ys. The court below granted

the defendant summary judgment based, in part, on its finding that the defendant did not know the plaintiff had swallowed impression material. The trial court also held that the plaintiff’s expert was not qualified to offer an opinion as to the applicable standard of care in Jeffer son County. The plaintiff appeals, arguing that the defendant

is not entitled to summary judgment beca use, she argues: 1) the recor d contains evidence that the defendant was aware that the plaintiff had swallowed the impression material; and 2) her e xpert was q

ualified to offer his opinion

as to the s tandard

of care . We affir

m. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in whichH ERSCHEL P. F RANKS , J., joined. H OUSTON M. G ODDARD , P.J., filed a dissenting opinion. Kenneth K. Kennedy , Knoxville, Tennessee, for the appellant, Linda F. Greene. Darry l G. Lo we, Knoxville, Tenn essee, f or the ap pellee, Dr. Woody

Stinson, D. D.S. OPINION
I.
Linda F. Greene went to the office of her dentist, Dr. Woody Stinson, for the purp ose of having an impre ssion made

of her mouth as par

t of a pro cedure

to crown six of her teeth. Stinson placed a tray c ontaining impression material into Greene's mouth. Accordi ng to Greene, a substantial amount

of the material went into her throat, causing her to ga g and to swallow part of the-2-

materia l. Greene testif ied that aft er swallowi ng the material , she told S tinson, "a big bunchof that stuff went down my throat.” Howe ver, because Stinson did not respond, Greene testified that she did not know whether he heard what she had said.
For several day s after the impression was made, Greene suf fered extreme pain in her lower abdominal area. Five day s after she had seen Dr. Stinson, she was admitted to Lakeway Regional Hospital where she underwent abdominal surgery . During the surgery , two “foreign objects,” each approxima

tely seven centimeter s in length, were removed from her intestines. These objects had perforated

the wall of Greene’s intestines, resulting in an absc ess. There is no evidence in the record that the “ foreig n objects ” were the remn ants of the impress ion mater ial. Greene filed a complaint

in the tria l court, a lleging that Stinson

acted ne glige

ntly in his care and treatment of her. Green alleged that Stinson was negligent in failing to properly trea

t and evaluat e her condition after she told him that she had swallowed an excessive amount of impression materia l. She alleg ed that he

devia ted from the recog nized stan dard of a ccepta ble denta l care in Jefferson County. Specifically , she alleged that Stinson failed to properl y warn he

r of the risk of swallowing impressio n materia l, failed to obtain her informed consent, and failed to take sufficient action to treat he r after learnin g that sh

e had swa llowed imp

ression ma

terial. Stinson filed a mo tion for su mmary judgmen t. In s upport of

his motion, h

e provide d his own affida vit plus the affidavits of two other dentists, D r. Richard J. Miller and Dr. Larry Colin. The affida vits assert that Stinson did not deviate from the applicable standard of care in his treatment of Greene.
In response

to Stinson’s motion, Greene submitted the affidavit of Dr. Thomas J. David, a dentist from Atlanta, Georgia. I n his affidavit, David opi ned t hat Stinson deviated from the appropr iatestandard of care, thereby causing Greene’s injuries which re quired her t o under go su rg er y. The trial cou

rt ruled t h at Gree ne's claims of failure to warn and failure to obtain informed consent were negated by

Stinson’s proof. Greene has no t appe aled t hese t wo rul ings. As to G reene's claim that Stinson failed to properly treat her following her inge stion of impression material, the trial court delayed its ruling

to permit the defendant to take the deposition of Dr. David. After Dr. David’s deposition was taken, Greene submitted David’s supplemental affidavit, in which he recites statistical data with

respec t to denta

l practic e and hos pitals in Jef ferson Co unty and asserts that he is fa mi li ar wi th ma ny c ou nt ie s s im il ar to Je ff er so n C ou nt y. After reviewing Davi d’s deposition and supplemental affid avit, the trial court granted Stinson summary judgmen t. In i ts judgme nt, the tri al court

opined asfollows: the court is of the opinion that the Motion for Summa ry Judgment i s well taken due to the fact that Dr. David had not been demonstrated to be a competent witness qualified to testify as to the standard of-3- care in the case. The Court further finds that there is no evidence on the record...that Dr. Stinson knew that Plaintiff Linda Gr eene swallowed impression material and without proof that he had such knowledge, the s ta ndard of care that Plaintiff's expert relies upon...w ould

not be applicable, and therefore the Court finds that even if P laintiff's expert was competent and qualified to state the applica ble standard of care, that standard of care is not applic able

to the undisputed fac ts in this case an d Defen dant woul d be entit led to summary judgme

nt as a matter of law.
Greene appeals , raising

the following issue s: Does the record reflec t a genuin e dispute

as to whether Stinson was aware that Gre ene swa

llowed imp

ression ma

terial? Did the trial court er r in determining that Dr. Thomas David, D.D.S., of DeKal b County, Georg ia, was not a competent witness under T.C.A. § 29-26-115 to testify as to the standa rd of care in this case?
II.
In deciding whether a grant of summary judgmen t is appro priate, courts a

re to det ermine “ if the pleadi ngs, depositions, answers to interrogatories, and admissions on file, togethe r with the affida vits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a mat ter of law.” Tenn. R. Civ. P. 56.04. When presented with a summary judgment motion, the trial court “m ust take the strongest legitimate view of the e vidence in favor of the nonmoving party , allow all reas onable in ferenc es in

favor of that party , and discard all counter

vail ing evi dence.” Byrd v. Ha ll , 847 S.W.2d 2 08, 210-1 1 (Tenn. 1993). I f there is a dispu te as to any mater

ial fact, the motion for summary judgment must be denied. Id. at 211. A material fact is one that

must be de cided in

order to resolve the claim or defense at whic h the motion is aimed. Id.
The party see

king summary judgme

nt has the initial burden of demonstrating that there is no genuin e issue of material fact and that it is entitled to a judgment as a matter of la w. I d. at 215

. Genera lly speaking , this burden may be met by either affirmatively

negating an essential element of the non-moving party ’s claim or by conc lusively establishing an a ffirmative defense. Id. at

215 n.5. Once the moving party

satisfies its burden, the burden then shif ts to the nonmov

ing par ty to establish that there are disputed material facts creating genuine issues tha

t must be re solved by

the trier of fact

. Id. at 215. Since summary judgme

nt presents a pure question of law, our review is de novo with no presumption of corr

ectness as to the trial court’s judgmen t. Hembree v. State , 925 S.W.2d 513, 515 (Tenn. 1996).-4- III. A. The trial cou

rt found t hat “the re is no evidence on the record presente d to the Courtthat Dr. Stinson knew that Plaintiff Linda Greene swallowed impression material.” Gre ene argues that the trial court erred in making this finding beca use, so the argument goes, the rec ord contains evidence that Stinson knew that Gre ene swa llowed som

e of the i mpression

materia l. In s upport of

this argume nt, Greene relies upon Stinson’s affidavit in which he states that he knew Greene wa s gagging somewhat when he pl aced the impression tray in her mouth. Greene also relies upon her own deposition testimony

in which sh

e states t hat she to ld Stinson, “[a] big bunch of that stuff went down my throat.” However, Greene a lso testified, “I don’t

know if he heard me or what, but he didn’t say any thing.” Greene

argue s that taki ng all

of this inf

ormation t

ogethe r, it is clear that Stinson knew that she swallowed the impression material. We disagree.
We find that based upon the record before us, Stinson did not know that Greene swallowed the impressio n materia

l. Accor ding to Greene’s deposition testimony, Stinson made no respon se to her after she rema rked tha t she had s wallowe d the mate rial. Eve n though Stinson acknowledg es in his affidavit that Gree ne ha d gagged during the procedure, he indicates that he did not know that Greene swallowed impression material. Furthermore, there is nothing in the record establishing that gagging under these circumstances would indicate that a patient has swall owed impr

ession ma terial. In his response to interrogatories, Stinson states that because Gre ene appeared to gag during t h e procedure, he asked

her if she swallow ed any of th e materi al, and she responded that she did not bel ieve that she h ad. The r ecord r eveals t hat Gree ne does n ot refute

that she ma

de this response . Finally , Stinson sta

ted in his a

ffidavit that
I complied

with the st

an dard of care by

carefully checking the impression tray

and Plaintiff’s mouth, and there was no evidence or indication of extrusion of impression material fro m th e tray whic h could have been swallowed. Based on his affidavit, Stinson’s testimony is that he did not know that Greene swallowed any impression material. Greene has failed to rebut that. Therefore, we are left with the established fact that Stinson

did not know

that Gre ene swa

llowed imp

ression ma

terial. The po rtion of the plaintiff’s complaint

that is still viable on this appeal is based on her theory that the defendant failed to take appropriate action after learning that his patient had swallowed impression material. Since the predicate for his alleged neg ligence is negated on the record before us, we do not reachthe issue of what is required, i f any thing, in the even t a dentis t dete rmines that his or her patient has swallowe d impressi on mater ial.-5- B. The trial court also found that summary judgment

was appr opriate because “Dr. David has notbeen de

monstrate d to be a c ompetent witness qu alified t

o testify as to the s tandard

of care in this case.” Furthermore, the court found that without proof that Stins on knew that Greene swallowed the impression material,

the standardof care that Plaintiff’s expert relies upon...would not be applicable, and therefore the Court finds that eve n if Plaintiff’s expert was competent and qualified to state the applicable standard of care, the standar

d is not applic able to the undisput ed fact s in this case and Defendant

would be entitled to summary judgment as a matter of law.
We agree with the tria

l c ourt. Be cause D avid’s te stimony is direct ed to the a

ppropria te standardof care

for dent ists who dis cover th at a patie nt has s wallowed a “f

oreign body ,” his testimonyis predicated on the fa ct that Stinson was aware that Greene swallowed the impre ssion materia l. Given the established fact that Stinson did not know Greene swallowed impression materia l, David’s opinion addresses a factual pattern that is not before us. Hence, his opinion is not material

. Therefore, it is not necessary for us to determine whether the trial court corre ct l y conclude d that Dav

id was not a

compete nt witness to testify as to the standard of care in this case.
IV. The judgment of the trial court granti ng Stinson

summary judgmen t is affir med. This c ase is remande d f

or collection of costs assessed in the trial court. Costs on appeal are taxed to the appellant, Linda F. Greene.

_______________________________ CHARLES D. SUSANO, JR., JUDGE