                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                  November 13, 2002 Session


             MARISA R. LOVIN v. CHARLES E. NAVE, D.D.S., P.C.

                        Appeal from the Circuit Court for Sevier County
                          No. 2000-140-I   Ben W. Hooper, II, Judge

                                    FILED JANUARY 22, 2003

                                  No. E2002-00686-COA-R3-CV


Marisa R. Lovin (“Plaintiff”) was involved in a one car accident on her way home from Dr. Charles
E. Nave’s (“Defendant”) dental office. Although Plaintiff has no memory of the accident itself, she
claims she suffered an adverse reaction to an anesthetic agent administered by Defendant, which
caused the car accident. Plaintiff sued Defendant for dental malpractice claiming Defendant failed
to warn her about potential side effects of the anesthesia and did not properly manage her treatment
after administering the anesthetic agent. The Trial Court granted Defendant summary judgment.
Plaintiff appeals. We affirm.


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


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J., and
CHARLES D. SUSANO, JR., J., joined.

Darren F. Mitchell, Knoxville, Tennessee, for the Appellant, Marisa R. Lovin.

F. Michael Fitzpatrick, Knoxville, Tennessee, for the Appellee, Charles E. Nave, D.D.S., P.C.


                                              OPINION

                                            Background

                  In February of 1999, Plaintiff went to Defendant’s office to have a cavity filled.
Plaintiff testified in her deposition that she arrived at Defendant’s office at approximately 11:30 a.m.
and was taken “straight back” for her treatment. Before beginning the treatment, Defendant injected
an anesthetic agent, Carbocaine, into Plaintiff’s gums.
                 Plaintiff testified it felt like Defendant was administering more anesthetic than
necessary. She testified her whole head was numb, not just her jaw. Plaintiff also testified
Defendant injected her with “one or two shots or more.” She stated “there was a lot [of injections]
put into [her] jaw.” However, Plaintiff could not state whether Defendant injected her twice, or more
than twice.

                 Defendant did not specifically recall Plaintiff’s treatment, but testified at his
deposition if anything had been unusual or out of the ordinary during the treatment, it would have
been noted in the chart. There was no such notation in the chart. Defendant testified his usual
procedure is to use a single use vial of Carbocaine and administer the drug very slowly through two
injection sites. Defendant stated administering the anesthetic slowly lessens the chance of the patient
having a reaction such as increased heart rate. Defendant testified a reaction of an increased heart
rate typically lasts only two to three minutes.

                Defendant testified he has procedures in place in his office in case a patient has an
adverse reaction to an anesthetic. Defendant explained that what he would do if a patient had an
adverse reaction to an anesthetic would be to place the patient’s head below their body, administer
oxygen, and call 911. Defendant testified that other than some patients having an increased heart
rate for a few minutes, he has never had a patient suffer an adverse reaction to an anesthetic.

               Plaintiff’s treatment took approximately one-half hour. Plaintiff testified she told
Defendant after the treatment she “didn’t feel right, [she] didn’t feel normal with [her] head.” She
asked Defendant if she could eat and was instructed to wait a couple of hours. Plaintiff cannot
remember specifically what Defendant said to her when she complained she didn’t feel right, but
testified Defendant said something which conveyed to Plaintiff that what she was feeling was normal
and would fade.

               Plaintiff walked to her car parked behind the office building when she left
Defendant’s office. Plaintiff testified she had no problem walking to her car. She used her remote
control to unlock the car door. Plaintiff testified she did not feel dizzy, but her head felt heavy and
numb “like [she] had rocks in it.” Plaintiff also testified neither her eyesight, nor her hand-eye
coordination were affected in any way. Before beginning to drive, Plaintiff looked at her tooth in
the rear-view mirror.

                Plaintiff testified she had no difficulty driving, but when she pulled out of the parking
lot she headed in the wrong direction. Plaintiff quickly realized her mistake and turned the car
around. Plaintiff testified she cannot remember much after turning the car around. She stated “after
that point that’s when my mind gets so blank on everything.” Plaintiff drove for several miles on
a four-lane road with stop lights. She then turned onto a two-lane back road which she described as
having “[s]ome parts [that] are curvy.” However, Plaintiff does not remember driving on either the
four-lane road or the two-lane back road. The only other detail Plaintiff remembers about the drive
is passing her friend’s mother’s house shortly before the crash occurred.



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                At approximately 12:55 p.m., almost one hour after she left Defendant’s office,
Plaintiff was involved in a one car accident. There were no witnesses to the accident. The police
report indicates Plaintiff was unconscious and was transported to the hospital via helicopter.
Plaintiff suffered a variety of injuries as a result of the accident. She has no memory of the accident
itself and virtually no memory of approximately the first week after the accident. Plaintiff did not
develop or regain her memory of being at Defendant’s office until months after she was released
from the hospital. Plaintiff’s car never was examined to determine if a mechanical failure may have
caused the accident.

                Plaintiff sued Defendant claiming Defendant failed to warn her of possible side
effects of the anesthetic and failed to appropriately manage Plaintiff’s care after administration of
the anesthetic. Defendant filed a motion for summary judgment supported by Defendant’s expert
affidavit stating he did not deviate from the recognized standard of care. Defendant filed a brief in
support of his motion for summary judgment arguing he was entitled to summary judgment as a
matter of law because Plaintiff failed to show causation.

                Plaintiff’s response to Defendant’s motion for summary judgment relied upon
Defendant’s deposition testimony to argue a material factual dispute existed. Specifically, Plaintiff
argued Defendant testified regarding what procedures he would follow if a patient were having an
adverse reaction to an anesthetic and that those procedures were not followed in this instance. Thus,
Plaintiff argues Defendant fell below the standard of care. Plaintiff’s response was not supported
by an expert witness affidavit.

               After hearing argument on Defendant’s motion for summary judgment, the Trial
Court entered an order allowing Plaintiff an additional thirty days from the date of the hearing to
provide a further response to Defendant’s motion for summary judgment. Plaintiff provided no
further response, but instead filed her own motion for summary judgment.

                Defendant responded to Plaintiff’s motion for summary judgment by filing a second
expert affidavit from Defendant wherein Defendant stated to a reasonable degree of dental certainty
Plaintiff did not suffer an adverse reaction to the anesthetic administered by Defendant. Defendant’s
second affidavit also stated Plaintiff exhibited no indicators of any adverse reaction to the anesthetic.

              The Trial Court heard the motions for summary judgment and granted Defendant’s
motion. Plaintiff then appealed to this Court.

                                              Discussion

            Plaintiff raises one issue on appeal: whether the Trial Court erred in granting
summary judgment to Defendant.

                As our Supreme Court has instructed:



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                The standards governing an appellate court’s review of a motion for summary
       judgment are well settled. Since our inquiry involves purely a question of law, no
       presumption of correctness attaches to the lower court’s judgment, and our task is
       confined to reviewing the record to determine whether the requirements of Tenn. R.
       Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997);
       Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991).
       Tennessee Rule of Civil Procedure 56.04 provides that summary judgment is
       appropriate where: (1) there is no genuine issue with regard to the material facts
       relevant to the claim or defense contained in the motion, see Byrd v. Hall, 847
       S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled to a judgment as
       a matter of law on the undisputed facts. See Anderson v. Standard Register Co., 857
       S.W.2d 555, 559 (Tenn. 1993). The moving party has the burden of proving that its
       motion satisfies these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d
       523, 524 (Tenn. 1991). When the party seeking summary judgment makes a properly
       supported motion, the burden shifts to the nonmoving party to set forth specific facts
       establishing the existence of disputed, material facts which must be resolved by the
       trier of fact. See Byrd v. Hall, 847 S.W.2d at 215.

               To properly support its motion, the moving party must either affirmatively
       negate an essential element of the non-moving party’s claim or conclusively establish
       an affirmative defense. See McCarley v. West Quality Food Serv., 960 S.W.2d
       585,588 (Tenn. 1998); Robinson v. Omer, 952 S.W.2d 423. 426 (Tenn. 1997). If the
       moving party fails to negate a claimed basis for the suit, the non-moving party’s
       burden to produce evidence establishing the existence of a genuine issue for trial is
       not triggered and the motion for summary judgment must fail. See McCarley v. West
       Quality Food Serv., 960 S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the
       moving party successfully negates a claimed basis for the action, the non-moving
       party may not simply rest upon the pleadings, but must offer proof to establish the
       existence of the essential elements of the claim.

              The standards governing the assessment of evidence in the summary
       judgment context are also well established. Courts must view the evidence in the
       light most favorable to the nonmoving party and must also draw all reasonable
       inferences in the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at
       426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment
       only when both the facts and the inferences to be drawn from the facts permit a
       reasonable person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d
       150, 153 (Tenn. 1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88-89 (Tenn. 2000) (footnote omitted).

              A plaintiff carries the burden of proving several elements in a dental malpractice
claim. A plaintiff must prove “[t]he recognized standard of acceptable professional practice in the


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profession and the speciality thereof, if any, that the defendant practices in the community in which
the defendant practices or in a similar community at the time the alleged injury or wrongful action
occurred.” Tenn. Code Ann. § 29-26-115 (a)(1) (2002). In addition, a plaintiff must prove the
defendant “acted with less than or failed to act with ordinary and reasonable care in accordance with
such standard” and as a result of the negligent act or omission plaintiff “suffered injuries which
would not otherwise have occurred.” Id. at (a)(2) & (3). Plaintiff’s burden must be met with
competent evidence. Smith v. Haley, No. E2000-001203-COA-R3-CV, 2001 Tenn. App. LEXIS
136, at *10 (Tenn. Ct. App. March 2, 2001), no appl. perm. appeal filed. “[I]njury alone does not
raise a presumption of the defendant’s negligence.” Tenn. Code Ann. § 29-26-115 (d) (2002).

               Our Supreme Court has held “where expert testimony is required in medical
malpractice cases1, a defendant who refutes the plaintiff’s allegations with expert testimony is
entitled to summary judgment when the plaintiff produces no rebuttal proof by expert testimony.”
Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 98 (Tenn. 1999) (order denying petition to rehear)
(footnote added); e.g., Bowman v. Henard, 547 S.W.2d 527, 531 (Tenn. 1977).

               Defendant’s motion for summary judgment affirmatively negated two essential
elements of Plaintiff’s claim, i.e., breach of standard of care and causation. We will discuss each
element in turn.

              Plaintiff argues there are material factual issues regarding whether Defendant deviated
from the acceptable standard of care. However, Plaintiff produced no expert testimony regarding
whether Defendant fell below the standard of care.

                Plaintiff asserts Defendant’s own testimony indicates he fell below the standard of
care. This is a mis-characterization of Defendant’s testimony. When asked what he would do if he
believed a patient was having an adverse reaction to the anesthetic, Defendant explained the
procedures he would follow. Plaintiff claims the fact Defendant did not follow these procedures in
his care and treatment of Plaintiff is an indication Defendant fell below the standard of care.
Plaintiff’s position assumes she had an adverse reaction to the anesthetic. However, Defendant
specifically stated in his second affidavit that it is his expert opinion Plaintiff did not suffer any
adverse reaction to the anesthetic. Defendant also stated the basis for his opinion. If Plaintiff did
not suffer an adverse reaction, there was no need, under Defendant’s deposition testimony, for


         1
           “[Tenn. Code Ann. § 29-26-115] requires expert proof of all the elements of the tort.” Kennedy v. Holder, 1
S.W .3d 6 70, 6 72 (Tenn. Ct. A pp. 1 999 ), overruled on other grounds by Seavers v. Meth odist Med. Ctr., 9 S.W.3d 86
(Tenn. 1999). However, an exception has been recognized when “the alleged acts of negligence are so obvious that they
come within the common know ledge of laymen.” Id. “Medical malpractice cases fitting into the ‘common knowledge’
exception typically involve unusua l injuries such as a sponge or needle being left in the patient’s abdomen following
surgery or where the patient’s eye is cut during the performance of an appendectomy.” Seavers v. Methodist Med. Ctr.,
9 S.W.3d 86, 92 (Tenn. 1999). The critical question in common knowledge cases is whether the instrumentality causing
the injury was under the defendant’s exclusive control at the time the injury occurred. Id.; Tenn. Code Ann. § 29-26-
115(c) (2002). The case at issue does not fall within the commo n knowledge exception, and, therefore, exp ert pro of is
required.

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Defendant to follow the procedure outlined in his deposition. Defendant’s second affidavit details
his expert opinion that Plaintiff did not suffer any adverse reaction to the anesthetic. Plaintiff offered
no expert opinion, by affidavit or otherwise, contrary to Defendant’s. In addition, Defendant’s first
affidavit specifically denies he fell below the standard of care. Plaintiff produced no expert evidence
regarding the standard of care, or whether Defendant’s care and treatment fell below that standard.
Even viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable
inferences in Plaintiff’s favor, as we must, we hold Defendant successfully negated an essential
element of Plaintiff’s claim. Defendant established by expert opinion that Plaintiff never suffered
any adverse reaction to the anesthetic. Consequently, there could be no deviation by Defendant from
the acceptable standard of professional practice in managing that alleged adverse reaction that never
happened.

                 Defendant also affirmatively negated the causation element of Plaintiff’s claim. As
discussed above, Defendant stated his expert opinion in his affidavit that Plaintiff did not suffer any
adverse reaction to the anesthetic. Plaintiff offered no countervailing expert opinion by affidavit or
otherwise. From the record before the Trial Court, and this Court, it is the undisputed expert opinion
that Plaintiff suffered no adverse reaction to the anesthetic. Without any such adverse reaction to
the anesthetic, Defendant’s alleged negligent act or omission could not have been the proximate
cause of Plaintiff’s injuries. Therefore, Defendant successfully negated that essential element of
Plaintiff’s claim as well. Even viewing the evidence in the light most favorable to Plaintiff and
drawing all reasonable inferences in Plaintiff’s favor, as we must, we find Defendant successfully
negated the causation element of Plaintiff’s claim.

                Defendant refuted Plaintiff’s allegations with expert testimony and negated two
essential elements of Plaintiff’s claim. Therefore, Plaintiff could not simply rest upon the pleadings
but was required to offer rebuttal proof. The Trial Court even allowed Plaintiff additional time in
which to offer such proof. Plaintiff offered no such proof. Since Plaintiff produced no rebuttal proof
by expert testimony creating any genuine issue as to the material facts, Defendant was entitled to
summary judgment. We affirm the Trial Court’s granting summary judgment to Defendant.

                                              Conclusion

                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion and for
collection of the costs below. The costs on appeal are assessed against the Appellant, Marisa R.
Lovin, and her surety.




                                                         ___________________________________
                                                         D. MICHAEL SWINEY, JUDGE


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