KIMBERLY J. STEVENS V. JAMES T. PATTERSON, D.M.D. and JAMES T. PATTERSON, D.M.D., P.S.C.
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RENDERED:
September 5, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-001469-MR
KIMBERLY J. STEVENS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
CIVIL ACTION NO. 94-CI-005464
V.
JAMES T. PATTERSON, D.M.D. and
JAMES T. PATTERSON, D.M.D., P.S.C.
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
DYCHE, GUDGEL and HUDDLESTON, Judges.
HUDDLESTON, JUDGE.
Kimberly J. Stevens appeals from summary
judgment in favor of James T. Patterson, D.M.D., in a dental
malpractice action.
Finding no error, we affirm.
On November 5, 1993, Stevens underwent oral surgery to
have
her
procedure.
wisdom
teeth
removed.
Dr.
Patterson
performed
the
As is not uncommon with such a procedure, Stevens
experienced severe pain following the surgery.
Dr. Patterson
prescribed
9,
1993,
Dr.
When
the
pain
Patterson
Vicodin
treated
for
pain.
Stevens
for
Around
a
dry
November
socket.
persisted, Stevens contacted Dr. Patterson again on November 12,
1993.
She was complaining of pain and other symptoms believed to
be side effects of the Vicodin.
continue
taking
following
the
week.
pain
Dr. Patterson advised her to
medication
According
to
and
Stevens,
to
she
contact
returned
him
the
to
Dr.
Patterson's office on November 16, 1993, complaining of continued
pain and swelling on the right side of her face.
At this time, Dr.
Patterson prescribed Keflex, an antibiotic, for the prevention of
an infection.
Rather than improving, however, Stevens claims that
her condition deteriorated and she began running a fever.
returned to Dr. Patterson again on November 23, 1993.
She
Contrary to
Stevens's testimony, Dr. Patterson testified that Stevens was not
experiencing swelling at this time.
Since Stevens was obviously
encountering problems with her jaw, Dr. Patterson referred her to
Dr. Perelmuter, an orthodontist, to see if she might be suffering
from temporomandibular joint ("TMJ") syndrome.1
Stevens saw Dr. Perelmuter on the following day, November
24,
1993.
swelling.
Unlike
Patterson,
Dr.
Perelmuter
did
notice
some
He administered a splint, prescribed Flexeril2 and
recommended that she return to Dr. Patterson. On Thanksgiving Day,
November 25, 1993, Stevens claims that the pain and swelling
continued.
1993.
She returned to Dr. Patterson's office on November 26,
He insists that, once again, there was no swelling.
Stevens
1
TMJ involves "[s]evere aching pain in and about the
temporomandibular joint . . . ."
Taber's Cyclopedic Medical
Dictionary 1960 (17th ed. 1993).
2
Flexeril is used "for relief of muscle spasm[s] associated
with acute, painful musculoskeletal conditions." Physicians' Desk
Reference (PDR) 1329 (43rd ed. 1989).
2
was advised to continue with Dr. Perelmuter's treatment.
Despite
the treatment by Drs. Perelmuter and Patterson, Stevens's condition
worsened.
On
November
29,
1993,
treatment from Dr. Perelmuter.
Stevens
sought
"emergency"
As Dr. Patterson had left town on
vacation two days earlier, and Stevens's condition had worsened,
Dr. Perelmuter referred Stevens to Dr. Goldman, another oral
surgeon, to determine whether Stevens had an infection.
Dr.
Goldman, who saw Stevens on the same day, diagnosed an infection
and prescribed Clindamycin, Flagyl and Percocet.3
In her office on
November 30, 1993, Dr. Goldman administered a local anesthetic so
that she could incise and drain the infected area.
When Stevens's
condition continued to deteriorate, Dr. Goldman hospitalized her on
December 1, 1993.
She remained in the hospital for eight days.
Several months later, alleging that Dr. Patterson had
been negligent in his failure to diagnose the infection, Stevens
filed this dental malpractice action.4
On March 18, 1996, after
about a year and a half of discovery, Dr. Patterson moved for
3
Clindamycin and Flagyl are both used "in the treatment of
serious infections caused by susceptible anaerobic bacteria." PDR
at 2014, 2149. Flagyl is also used to treat many other types of
infections, including bone and joint infections. Id. at 2015
Percocet is prescribed "for the
moderately severe pain." Id. at 915.
4
relief
of
moderate
to
There has been no allegation that Dr. Patterson was
negligent in the performance of the surgery. In fact, it is wellestablished that "the presence of infection following an operation
or in an area under treatment is not prima facie evidence of
negligence (i.e., does not warrant an inference of negligence)."
Harmon v. Rust, Ky., 420 S.W.2d 563, 564 (1967).
3
summary judgment because Stevens had not been able to produce a
medical
expert
to
testify
required standard of care.
that
his
treatment
fell
below
the
On April 1, 1996, the court ordered
Stevens to produce a medical expert by 5:00 p.m. on April 3, 1996,
and to respond to the motion for summary judgment by April 8, 1996.
On April 3, 1996, Stevens filed a pretrial compliance listing
Thomas Eugene Stump, D.D.S., of Winston-Salem, North Carolina, as
her expert witness.
On April 8, 1996, Stevens responded to
Patterson's motion for summary judgment by stating in part:
[I]n the present case, negligence can be inferred from
the record and Stevens'[s] medical expert will testify as
to whether Patterson's conduct fell below the standard of
care . . . .
*
*
*
Stump may testify as to whether Patterson's acts or
omissions deviated from the appropriate standard of care
. . . .
(Emphasis supplied.)5
On April 12, 1996, after holding a telephonic conference,
the court sent a letter to the attorneys advising them of its
conclusions regarding the necessity of expert testimony in medical
malpractice cases:
Dear Counsel:
5
Significantly, Dr. Stump's deposition had not been taken at
the time.
4
Just
a
brief
note
to
follow
up
on
our
recent
conference call and to confirm our understanding at this
time.
Given our discussions and having considered the
information in the Court's file, I agree with you, John
(Patterson's counsel), that this is not a case of res
ipsa loquitur.
The Court believes that to avoid a
directed verdict Ms. Stevens would need an expert's
testimony opining that Dr. Patterson's conduct fell below
the standard of professional care and caused her problems.
At the same time, I told you both that I was
reluctant to take Ms. Stevens's day in Court away from
her by entering summary judgment.
agreeing
that,
Glenn
[Stevens's
We concluded by
counsel],
you
would
confer with your expert and let John and me know within
the next several days whether or not your expert is
willing to testify on Ms. Stevens's behalf.
If he is
not, then I will enter a summary judgment and Ms. Stevens
may appeal on whether or not she should be able to
proceed without an expert.
If your expert is willing to testify, then we will
reschedule the trial date and allow time for one or more
experts to be deposed before the Court rules on the
motion for summary judgment.
5
(Emphasis supplied.)
After conferring with Dr. Stump, Stevens's counsel, in a
letter dated April 18, 1996, advised the court:
"Dr. Stump's
conclusion, based on the portions of the record he reviewed, is
that although Ms. Stevens's care might have been handled differently, there is insufficient evidence documented in the record that
Dr. Patterson deviated from the standard of care."
supplied.)
(Emphasis
As a result, the court granted summary judgment in
favor of Dr. Patterson on April 19, 1996.
On appeal, Stevens insists that summary judgment was
inappropriate because a factual issue remained as to whether she
"actually
Patterson.
exhibited
symptoms
of
infection"
when
she
saw
Dr.
She further argues that (1) expert testimony is not
necessary because the jury could determine whether Dr. Patterson
was negligent based upon the evidence of the record and that (2)
the doctrine of res ipsa loquitur establishes negligence.
We
disagree with all of Stevens's contentions.
In Steelvest Inc. v. Scansteel Service Center Inc., Ky.,
807 S.W.2d 476, 482 (1991), the Supreme Court set forth the
standard to apply in determining whether to grant or deny a motion
for summary judgment:
[T]he movant should not succeed unless his right to
judgment is shown with such clarity that there is no room
left for controversy . . . . Only when it appears
impossible for the nonmoving party to produce evidence at
trial warranting a judgment in his favor should the
6
motion for summary judgment be granted.
(Citations
omitted.) (Emphasis supplied.)
Furthermore, "[t]he record must be viewed in a light most favorable
to the party opposing the motion for summary judgment and all
doubts are to be resolved in his favor."
Id. at 480.
Even if we assume that Stevens did have swelling when she
saw Dr. Patterson as she says, the record before us lacks any
evidence
that
Dr.
Patterson
diagnose an infection.
was
negligent
in
his
failure
to
None of the dental experts familiar with
the case (Drs. Perelmuter, Goldman and Stump) testified that Dr.
Patterson's conduct fell below the required standard of care.
In
fact, while Dr. Perelmuter acknowledged that Stevens was experiencing swelling when he saw her on November 24, 1993, he did not
diagnose an infection.
Even when he saw her on November 29, 1993,
Dr. Perelmuter did not diagnose an infection. Instead, he referred
her to Dr. Goldman. The fact that Dr. Goldman ultimately diagnosed
an infection on November 29, 1993, does not support an inference
that Stevens actually had an infection when she saw Dr. Patterson
on November 16, 23 or 26, 1993. Interestingly, however, the record
does suggest that Dr. Patterson anticipated the possibility of an
infection and attempted to prevent such by prescribing Keflex.
It
is
well-settled
that
"[n]egligence
in
medical
malpractice cases must be established by expert testimony unless
negligence and injurious results are so apparent that a layman with
general knowledge would have no difficulty recognizing it." Morris
v. Hoffman, Ky.App., 551 S.W.2d 8, 9 (1977).
7
The same rule applies
to dental malpractice actions.
777, 779 (1956).
Butts v. Watts, Ky., 290 S.W.2d
Furthermore, "whether [a medical professional]
was negligent in making a diagnosis 'must be determined in the
light of conditions existing and facts known at the time thereof,
and
not
in
the
developments.'"
light
of
knowledge
gained
through
subsequent
Engle v. Clarke, Ky., 346 S.W.2d 13, 17 (1961).
Since Stevens was unable to produce an expert, the
question becomes whether the alleged negligence was so obvious that
layman with general knowledge would recognize it.
The trial court
held that the answer to that question is "no," and we agree.
Considering that Drs. Perelmuter, Goldman and Stump were unable to
say that Dr. Patterson's treatment fell below the required standard
of
care,
a
jury
of
laymen
with
general
reasonably reach such a conclusion.
knowledge
could
not
Laymen simply do not "have
sufficient general knowledge to 'recognize' that infection . . .
[is] the result[] of negligence".
563, 564 (1967).
Harmon v. Rust, Ky., 420 S.W.2d
Furthermore, according to Engle, 346 S.W.2d at
17, the fact that Dr. Goldman subsequently diagnosed an infection
cannot
be
considered
as
a
factor
in
determining
whether
Dr.
Patterson should have made such a diagnosis several days earlier.
In fact, such a subsequent diagnosis does not prove that an
infection existed when Stevens saw Dr. Patterson.
It is particu-
larly significant that Stevens's condition continued to deteriorate
even after Dr. Goldman diagnosed and began treating the infection.
8
We do not agree with Stevens's argument that the doctrine
of res ipsa loquitur establishes negligence.
"The phrase res ipsa
loquitur means 'the thing speaks for itself.'"
289 Ky. 40, 157 S.W.2d 739, 741 (1941).
Ralston v. Dossey,
Under this doctrine, the
mere happening of an injury "affords reasonable evidence that the
[injury] arose from want of care on [the] defendant's part" where
it is shown that the injury is "such as in the ordinary course of
events would not happen if those who had the control of [the
situation] used the degree of care imposed upon them by law."
Id.
Accordingly, the "applicability of the doctrine depends in major
part on whether the particular injury was of a kind that a jury
could find would not usually occur in the absence of negligence."
Jewish Hospital Assoc. v. Lewis, Ky., 442 S.W.2d 299, 300 (1969).
According to the Restatement (Second) of Torts § 328D(1)
(1965), several conditions must be met before the doctrine of res
ipsa loquitur can be applied:
It may be inferred that harm suffered by the plaintiff is
caused by negligence of the defendant when[:]
(a)
the event is of a kind which ordinarily does
not occur in the absence of negligence;
(b) other responsible causes, including the conduct
of the plaintiff and third persons, are sufficiently
eliminated by the evidence; and
(c) the indicated negligence is within the scope of
the defendant's duty to the plaintiff.
9
A res ipsi loquitur case, according to the Restatement,
is:
[O]rdinarily merely one kind of case of circumstantial
evidence, in which the jury may reasonably infer both
negligence and causation from the mere occurrence of the
event and the defendant's relation to it.
Restatement, supra, § 328 D, cmt. b, p. 157, quoted with approval
in Perkins v. Hausladen, Ky., 828 S.W.2d 652, 656 (1992).
Stevens has not alleged that her development of an
infection was the result of Dr. Patterson's care.
number of things that could cause an infection.
There are a
Furthermore, she
was advised in advance that infections commonly occur after this
type of oral surgery.
deteriorated
after
Stevens alleges instead that her condition
Dr.
Patterson
deviated
from
the
required
standard of care by failing to diagnose the infection.
Significantly, Dr. Patterson did prescribe Keflex to
prevent an infection and there is no evidence that Stevens actually
had an infection when she saw Dr. Patterson.
Furthermore, in the
absence of expert testimony, we are unable to say that, even if she
did have an infection at that time, the infection would not have
progressively worsened in the absence of negligence, i.e., even if
Patterson
had
made
the
diagnosis.
Interestingly,
Stevens's
condition continued to deteriorate after Dr. Goldman diagnosed and
treated the infection.
Under these circumstances, the circuit
court correctly determined that Stevens would have to produce an
expert to proceed to trial.
10
We agree with the circuit court that the allegation
involved in the present case are factually distinguishable from the
cases upon which Stevens relies.
For example, in Perkins v.
Hausladen, supra, the surgeon accused of negligence in preforming
surgery to remove diseased tissue from a patient's inner ear
admitted on deposition that one of the prime objectives of the
surgeon is to make sure he does not tear the sigmoid sinus, a vein
that drains the brain over into the internal jugular vein.
This
occurred in Perkins, and there was evidence that the surgeon had
admitted to the patient's husband that he had "drilled in and . . .
had hit a blood vein and had to stop surgery."
828 S.W.2d at 653.
In the case at hand there is, as has been noted, no comparable
evidence.
Thus, unlike Perkins, the evidence is insufficient to
present a case of res ipsa loquitur, or circumstantial evidence,
from which a jury could infer negligence.
During the discovery period which lasted approximately a
year and a half, Stevens was given a full opportunity to obtain an
expert to testify that Dr. Patterson's conduct fell below the
required standard of care.
She could not do so.
When she finally
did identify Dr. Stump as an expert, he was unable to say that Dr.
Patterson deviated from the standard of care and she was forced to
inform the court that he had refused to testify against Dr.
Patterson. Since we have held that expert testimony is required to
establish negligence in this case, the letter from Stevens's
counsel was, in effect, her admission that it would be impossible
11
for her to produce evidence of negligence at trial.6
When it
"appears impossible for the nonmoving party to produce the required
evidence at trial warranting a judgment in his [or her] favor,"
summary judgment is appropriate.
For
these
reasons,
Steelvest, 807 S.W.2d at 482.
the
summary
judgment
dismissing
Stevens's complaint is affirmed.
ALL CONCUR.
BRIEF AND ORAL
APPELLANT:
ARGUMENT
FOR
BRIEF AND
APPELLEE:
ORAL
ARGUMENT
Vicki L. Buba
SEILLER & HANDMAKER, LLP
Louisville, Kentucky
John F. Parker, Jr.
BOEHL STOPHER & GRAVES
Louisville, Kentucky
ON BRIEF:
ON BRIEF:
Maury D. Kommor
Glenn A. Cohen
FOR
William P. Swain
6
Even if Stevens could produce evidence of negligence, it
would be difficult for the jury to find that any harm resulted from
the negligence because the infection was diagnosed and treated just
a few days after the alleged negligent diagnosis. As Stevens's
condition continued to deteriorate after Dr. Goldman initiated
treatment, it would be a major inference for the jury to find that
Dr. Patterson's failure to diagnose the infection a few days
earlier caused the condition to become so severe.
12
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