                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    August 29, 2001 Session

              LINDA F. GREENE v. DR. WOODY 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 defendant dentist for the crowning of six teeth. As a part of
this procedure, 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 surgically removed from her intestines. She sued the dentist, alleging that he violated the
applicable standard of care in a number of ways. 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 Jefferson County. The plaintiff appeals, arguing that
the defendant is not entitled to summary judgment because, she argues: 1) the record contains
evidence that the defendant was aware that the plaintiff had swallowed the impression material; and
2) her expert was qualified to offer his opinion as to the standard of care. We affirm.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J.,
joined. HOUSTON M. GODDARD , P.J., filed a dissenting opinion.

Kenneth K. Kennedy, Knoxville, Tennessee, for the appellant, Linda F. Greene.

Darryl G. Lowe, Knoxville, Tennessee, for the appellee, Dr. Woody Stinson, D.D.S.

                                              OPINION

                                                   I.

       Linda F. Greene went to the office of her dentist, Dr. Woody Stinson, for the purpose of
having an impression made of her mouth as part of a procedure to crown six of her teeth. Stinson
placed a tray containing impression material into Greene's mouth. According to Greene, a
substantial amount of the material went into her throat, causing her to gag and to swallow part of the
material. Greene testified that after swallowing the material, she told Stinson, "a big bunch of that
stuff went down my throat.” However, because Stinson did not respond, Greene testified that she
did not know whether he heard what she had said.

        For several days after the impression was made, Greene suffered extreme pain in her lower
abdominal area. Five days 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
approximately seven centimeters in length, were removed from her intestines. These objects had
perforated the wall of Greene’s intestines, resulting in an abscess. There is no evidence in the record
that the “foreign objects” were the remnants of the impression material.

        Greene filed a complaint in the trial court, alleging that Stinson acted negligently in his care
and treatment of her. Green alleged that Stinson was negligent in failing to properly treat and
evaluate her condition after she told him that she had swallowed an excessive amount of impression
material. She alleged that he deviated from the recognized standard of acceptable dental care in
Jefferson County. Specifically, she alleged that Stinson failed to properly warn her of the risk of
swallowing impression material, failed to obtain her informed consent, and failed to take sufficient
action to treat her after learning that she had swallowed impression material.

        Stinson filed a motion for summary judgment. In support of his motion, he provided his own
affidavit plus the affidavits of two other dentists, Dr. Richard J. Miller and Dr. Larry Colin. The
affidavits 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. In his affidavit, David opined that Stinson deviated from the
appropriate standard of care, thereby causing Greene’s injuries which required her to undergo
surgery.

         The trial court ruled that Greene's claims of failure to warn and failure to obtain informed
consent were negated by Stinson’s proof. Greene has not appealed these two rulings. As to Greene's
claim that Stinson failed to properly treat her following her ingestion 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 respect to dental practice and hospitals in Jefferson County and asserts that he
is familiar with many counties similar to Jefferson County.

     After reviewing David’s deposition and supplemental affidavit, the trial court granted Stinson
summary judgment. In its judgment, the trial court opined as follows:

                the court is of the opinion that the Motion for Summary Judgment is
                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


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                care in the case. The Court further finds that there is no evidence on
                the record...that Dr. Stinson knew that Plaintiff Linda Greene
                swallowed impression material and without proof that he had such
                knowledge, the standard of care that Plaintiff's expert relies
                upon...would not be applicable, and therefore the Court finds that
                even if Plaintiff's expert was competent and qualified to state the
                applicable standard of care, that standard of care is not applicable to
                the undisputed facts in this case and Defendant would be entitled to
                summary judgment as a matter of law.

        Greene appeals, raising the following issues:

                Does the record reflect a genuine dispute as to whether Stinson was
                aware that Greene swallowed impression material?

                Did the trial court err in determining that Dr. Thomas David, D.D.S.,
                of DeKalb County, Georgia, was not a competent witness under
                T.C.A. § 29-26-115 to testify as to the standard of care in this case?

                                                   II.

         In deciding whether a grant of summary judgment is appropriate, courts are to determine “if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, 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 matter of law.” Tenn. R. Civ. P. 56.04. When presented with a
summary judgment motion, the trial court “must take the strongest legitimate view of the evidence
in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard
all countervailing evidence.” Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993). If there is a
dispute as to any material fact, the motion for summary judgment must be denied. Id. at 211. A
material fact is one that must be decided in order to resolve the claim or defense at which the motion
is aimed. Id.

        The party seeking summary judgment has the initial burden of demonstrating that there is no
genuine issue of material fact and that it is entitled to a judgment as a matter of law. Id. at 215.
Generally speaking, this burden may be met by either affirmatively negating an essential element of
the non-moving party’s claim or by conclusively establishing an affirmative defense. Id. at 215 n.5.
Once the moving party satisfies its burden, the burden then shifts to the nonmoving party to establish
that there are disputed material facts creating genuine issues that must be resolved by the trier of fact.
Id. at 215.

       Since summary judgment presents a pure question of law, our review is de novo with no
presumption of correctness as to the trial court’s judgment. Hembree v. State, 925 S.W.2d 513, 515
(Tenn. 1996).


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                                                   III.

                                                   A.

        The trial court found that “there is no evidence on the record presented to the Court that Dr.
Stinson knew that Plaintiff Linda Greene swallowed impression material.” Greene argues that the
trial court erred in making this finding because, so the argument goes, the record contains evidence
that Stinson knew that Greene swallowed some of the impression material. In support of this
argument, Greene relies upon Stinson’s affidavit in which he states that he knew Greene was gagging
somewhat when he placed the impression tray in her mouth. Greene also relies upon her own
deposition testimony in which she states that she told Stinson, “[a] big bunch of that stuff went down
my throat.” However, Greene also testified, “I don’t know if he heard me or what, but he didn’t say
anything.” Greene argues that taking all of this information together, 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 impression material. According to Greene’s deposition testimony, Stinson made no response to
her after she remarked that she had swallowed the material. Even though Stinson acknowledges in
his affidavit that Greene had 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 swallowed impression material.
In his response to interrogatories, Stinson states that because Greene appeared to gag during the
procedure, he asked her if she swallowed any of the material, and she responded that she did not
believe that she had. The record reveals that Greene does not refute that she made this response.
Finally, Stinson stated in his affidavit that

                I complied with the standard of care by carefully checking the
                impression tray and Plaintiff’s mouth, and there was no evidence or
                indication of extrusion of impression material from the tray which
                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 Greene swallowed impression material. The portion 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 negligence is negated on the record before us, we do not reach the issue
of what is required, if anything, in the event a dentist determines that his or her patient has
swallowed impression material.




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                                                  B.

       The trial court also found that summary judgment was appropriate because “Dr. David has
not been demonstrated to be a competent witness qualified to testify as to the standard of care in this
case.” Furthermore, the court found that without proof that Stinson knew that Greene swallowed
the impression material,

               the standard of care that Plaintiff’s expert relies upon...would not be
               applicable, and therefore the Court finds that even if Plaintiff’s expert
               was competent and qualified to state the applicable standard of care,
               the standard is not applicable to the undisputed facts in this case and
               Defendant would be entitled to summary judgment as a matter of law.

       We agree with the trial court. Because David’s testimony is directed to the appropriate
standard of care for dentists who discover that a patient has swallowed a “foreign body,” his
testimony is predicated on the fact that Stinson was aware that Greene swallowed the impression
material. Given the established fact that Stinson did not know Greene swallowed impression
material, 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 correctly
concluded that David was not a competent witness to testify as to the standard of care in this case.

                                                 IV.

       The judgment of the trial court granting Stinson summary judgment is affirmed. This case
is remanded for collection of costs assessed in the trial court. Costs on appeal are taxed to the
appellant, Linda F. Greene.



                                                       _______________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




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