                                 IN THE COURT OF APPEALS
                                       AT KNOXVILLE                                                                              FILED
                                                                                                                              November 17, 1998

                                                                                                                               Cecil Crowson, Jr.
                                                                                                                                Appellate Court
                                                                                                                                      Clerk


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




                                                    OPINION




                                                                                                            Goddard, P.J.




                       In this cause Shirley J. Dannenhold1 sues Knoxville Pathology Group, Carter

Miller, Jr., M.D., and Bruce Bellomy,




            1
                        M s . D a n n e n h o l d    d i e d a f t e r    s u i t   w a s   f i l e d   a n d   a   s u b s t i t u t e
c o m p l a i n t   w a s f i l e d b y h e r       E x e c u t r i x .
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 even-
          handed 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

          2
                      T h e o r i g i n a l c o m p l a i n t a l s o i n c l u d e d a s D e f e n d a n t s   M s . G e l d m e i e r
a n d F o r t S a n d e r s R e g i o n a l M e d i c a l C e n t e r , I n c .      A n o n - s u i t w a s     t a k e n a s t o M s .
G e l d m e i e r a n d t h e c l a i m a g a i n s t F o r t S a n d e r s w a s s e t t l e d .



                                                                    2
              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
          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.


          3
                      D r . C o o p e r w a s n o t a m e m b e r o f t h e p a t h o l o g y g r o u p     w h e n t h e
r e a d i n g s w e r e m a d e i n 1 9 9 1 a n d 1 9 9 3 .     H e d i d , h o w e v e r , e x a m i n e    t h e s l i d e s   i n
1 9 9 4 a f t e r a q u e s t i o n a s t o t h e i r a c c u r a c y w a s r a i s e d .



                                                                 4
                                         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




                                 4
                                                              T          h e                3       - y       e a          r               r     e p o s          e p r         o v           i s i   o n                   o      f          T e n        n . C         o d e              A n      n .                  §            2     9 -         2 6          - 1          1 6 (        a )           h a d
a   l     r e     a d        y                  p a s    s e         d              o n                 t    h e                     1 9         9 1 s            l i d e           b        e f o    r e                   M       r s       . D          a n n         e n h          o l d             l         e a          r n        e d               t      h a          t        s   h e           h a d
c    a      n c      e r                 ,      w h i       c h                u      l t            i m         a t     e            l y             l e d            t o       h e           r d         i s            c o         v e       r y             o f       t h e              d e      f e            n d           a n          t s       ’            n e           g l i         g e    n c e i n
r   e     p o      r t       i               n g h       e r               p        r e          v i        o u        s                 p      a p s           m e a r        s             a s       n e            g a          t i       v e .                  T   h e           c y t        o t            e c          h n         o l          o g         i s            t w           h o            r e a d
t   h     e       1 9            9            1 s l      i d         e              a n           d          t h        e                 p      a t h o         l o g i      s t               w h    o              i s         s u        e d          t h e                n e    g a t        i v            e            r e           p o          r t                 o    n t          h e            1 9 9 1
s   l     i d     e s                         w e r e          n        o t                  n        a m        e d                  a s            d e f         e n d a        n t          s t        o              t h           i s          a c        t i o        n ,           a n d               n         o         a t        t e          m p           t            h a s            b    e e n
m     a     d e          b           y           t h e         p        l a          i n           t i       f f                    t o             a s s       e r t         a            c l a         i m                  f      o r           r e      c o v        e r y              o f           d         a m           a g        e s                f     o r                t h    e
n   e      g l    i g        e               n c e       t h          a t                 t      o o        k          p            l a        c e i           n 1 9           9 1          .         T h             e           e v        e n t        s o           f 1           9 9 1             a          r e               s     t i           l l                r     e l e        v a        n t
e   v      i d     e n        c               e , h       o w          e v           e r           ,         i n                     c o         n n e c          t i o n          w          i t h          p         l a         i n       t i f           f ’ s              a l    l e g        a t            i o          n s               r     e g            a r          d i n        g         t h e
i   n     d e      p e        n               d e n t         n        e g           l i          g e        n c        e                 o      f t h           e d e          f e         n d a      n t            s           i n             t h     e o           p e r         a t i          o n                   a      n d               m       a n          a g          e m e         n t       o f
t   h      i s         l     a                b o r a      t o         r y            ,             a n        d               t       h e             f a i        l u r e            t       o i        d e            n t           i f      y a            n d           r e m       e d y              a         n            o b         v i          o u           s            d e f        i c     i e n c y
i   n         t   h e                         p r o f    i c         i e           n c           y          o f                    t h         e t e           c h n i        c i             a n s           t        o            w h        o m            t h e        s e           d e f       e n             d a          n t        s            e r         e            d e l        e g        a t i n g
t   h       e       t a              s         k o f             r       e a            d i        n g             s           l       i d        e s .

                                 5
                      M r s . D a n n e n h o l d d i d i n f a c t                                                                                                                                                           d i e i n A u g u s t o f 1 9 9 7 ,                                                                                        a n d h e r
s u b s t i t u t e d c o m p l a i n t h a s b e e n f i l e d t o                                                                                                                                                           a l l o w h e r E x e c u t r i x t o                                                                                      p r o c e e d                                w i t h
t h i s a c t i o n .

                                                                                                                                                                                                                  5
               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):




                                                 6
                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




                                                  7
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


                                                  8
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.




                                                9
