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Williams v. United States

United States District Court, D. New Mexico

October 22, 2019

TRACY WILLIAMS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

         On June 29, 2018, Plaintiff Tracy Williams filed four partial motions for summary judgment: (i) Motion for Partial Summary Judgment on Reasonableness of Charges for Necessary Medical Treatment (ECF No. 46); (ii) Motion for Partial Summary Judgment on Causation (ECF No. 47); (iii) Motion for Partial Summary Judgment on the Foreseeability and Reasonableness of Plaintiff's Self-Instrumentation (ECF No. 48); and (iv) Motion for Partial Summary Judgment on Liability (ECF No. 49).[1] Plaintiff is asserting a claim for medical negligence against the dentist who allegedly, while taking a dental impression to create a set of partial dentures, failed to prevent her from swallowing dental impression material that purportedly caused abscesses and colon perforation. Defendant filed responses opposing each motion. The Court, having considered the motions, briefs, evidence, relevant law, and otherwise being fully advised, concludes that Plaintiff's motions for partial summary judgment on the reasonableness of medical charges and on causation should be denied, and Plaintiff's motions for partial summary judgment on the foreseeability and reasonableness of her self-instrumentation and on liability should be granted in limited part and otherwise denied, as described more fully herein.

         I. STANDARD

         “A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought.” Fed.R.Civ.P. 56(a). On a motion for summary judgment, the moving party initially bears the burden of showing that no genuine issue of material fact exists. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). Once the moving party meets its burden, the nonmoving party must show that genuine issues remain for trial. Id. The nonmoving party must go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “All facts and reasonable inferences must be construed in the light most favorable to the nonmoving party.” Quaker State Minit-Lube, Inc. v. Fireman's Fund Ins. Co., 52 F.3d 1522, 1527 (10th Cir. 1995) (internal quotations omitted). Only disputes of facts that might affect the outcome of the case will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There is no issue for trial unless there is enough evidence favoring the nonmoving party for a jury to return a verdict for that party. See Id. at 248. The following facts are undisputed or are those construed in the light most favorable to Defendant, the non-moving party.

         II. FACTUAL BACKGROUND

         On November 19, 2015, Tracy Williams (now known as Tracy Thomas, but herein referred to as Ms. Williams, her name at the time of the events in question) had impressions taken at the dental clinic of Ben Archer Health Center in Alamogordo, New Mexico. Pl.'s Mot., Undisputed Fact (“UF”) ¶ 1, ECF No. 46. Dr. C. Ray Puckett, DDS, assisted by Rory Albrecht, took the impressions. Id. at UF ¶ 2. Ms. Williams was seated in a dental chair in a reclined position. See Williams Dep. 44:16-45:1, ECF No. 54-5; Puckett Dep. 31:14-32:18, ECF No. 54-1.[2]

         Dr. Puckett used Aquasil Rigid and Aquasil Monophase for the dental impression. Def.'s Resp. to Pl.'s First Set of Interrog. No. 11, ECF No. 59 at 10. Aquasil Rigid is a light green color. See Def.'s Resp. to Pl.'s First Set of Req. for Prod. No. 2, ECF No. 59 at 11-12. The material used to make Williams' dental impressions would be soft upon mixing but would harden over time. Def.'s Resp. to Pl.'s First Set of Req. for Admis. ¶ 10, ECF No. 61 at 22-23. Monophase is a thicker material, so it does not run. Gonzales Dep. 27:4-5, ECF No. 54-2.

         Beginning in December 2015, Ms. Williams sought medical care for abdominal pain and gastrointestinal distress. UF ¶ 3, ECF No. 46. During this time, Plaintiff attempted to relieve what she believed to be severe constipation by attempting to digitally locate and dislodge rectal material and by using an enema. UF ¶ 4, ECF No. 48.

         On December 10, 2015, she underwent a bowel resection surgery in Albuquerque, New Mexico, for colon perforation and pelvic abscesses. Driscoll Aff. ¶¶ 4-6, ECF No. 46 at 12-13. At the time of the surgery, a foreign body was removed from her colon. UF ¶ 5, ECF No. 46. The medical treatment reflected in Plaintiff's medical records was necessary as a result of the ingested foreign body. Def.'s Resp. to Second Req. for Admis. and Interrog. ¶ 12, ECF 46 at 21.

         A pathologist examined and photographed the foreign body immediately following surgery. UF ¶ 6, ECF No. 46. The pathologist in his report described the foreign body as “a 10.5 x 2.0 x 0.5 cm portion of irregular shaped red/brown rubbery material.” Surgical Pathology Report, ECF No. 46 at 19.

         A. The foreign body

         Defendant argues that there is a dispute of fact concerning what the foreign body was, relying on the following evidence to show it was not dental impression material. Dr. Puckett did not observe Ms. Williams swallow any of the dental material. Puckett Dep. 67:15-17, 70:25-71:2, ECF No. 51-1. He did not observe her gagging and she never told him she was uncomfortable. Id. 70:23-71:5. Rory Albrecht also does not remember her swallowing a large amount of dental impression material. Albrecht Dep. 44:13-18, ECF No. 51-5. Had it occurred he believes he would have remembered because it is uncommon and would have stood out. Id. 19-23.

         Ms. Williams did not report swallowing dental material to Dr. Puckett or his staff that day. Puckett Dep. 67:18-21, 71:6-10, ECF No. 51-1; Albrecht Dep. 45:2-10, ECF No. 51-5. Had she reported swallowing dental material, it would have been reflected in her patient chart, but her chart had no notation of it. Puckett Dep. 67:22-68:6, ECF No. 51-1; Albrecht Dep. 45:2-10, ECF No. 51-5. Dr. Puckett explained that there was no reason for he or his staff to note Ms. Williams swallowed dental material because it did not happen. Puckett Dep. 67:22-68:6, ECF No. 51-1. Sometime later, after December 14th, Ms. Williams called and spoke to Mr. Albrecht, asking about whether the dental material dissolved or passed through, but she did not mention a specific concern or that she had swallowed the material. See Albrecht Dep. 9:14-11:8, 42:9-21, ECF No. 54-6. Mr. Albrecht informed her that it just passes through the system. Id. at 9:14-23.

         While the dental impression material used with Ms. Williams, Aquasil Monophase, is a deep purple, the color of the foreign body in the photograph is red. Gonzales Dep. 23:2-24:18, ECF No. 51-2. Because the foreign body was not kept and is unavailable for analysis, Defendant's gastroenterology expert, Dr. James E. Martinez, was unable to form an opinion as to the nature of the material removed from Ms. Williams. See Martinez Dep. 23:3-22, ECF No. 51-4. Dr. Robert Giannini, DDS, Defendant's dental expert, also testified that the nature of the foreign body was inconclusive. Giannini Dep. 15:2-13, ECF No. 51-3.

         According to Plaintiff, Defendant's evidence does not properly dispute Plaintiff's dental expert's opinion that to a reasonable degree of medical/dental probability the foreign body was Aquasil impression material Dr. Puckett used on Ms. Williams during the November 19, 2015 impression procedures. Littman Aff. ¶ 14, ECF No. 46 at 25. Plaintiff points to evidence in which she testified to choking on and swallowing the impression material during the procedure and there was nothing else she could have swallowed. Williams Dep. 46:13-49:6, 115:8-116:2, ECF No. 59 at 19, 21. When asked in his deposition whether the foreign body looks different than what he would expect Aquasil monophase to look like after it has hardened, Dr. Puckett admitted, “It could be similar.” Puckett Dep. 57:8-11, ECF No. 59 at 15. Dr. Giannini acknowledged that there was nothing in the pathology report that made him think that the foreign body could not be dental impression material. See Giannini Dep. 14:8-21, ECF No. 59 at 17.

         B. Cause of colon perforation

         Ms. Williams suffered a perforation in the rectum. Martinez Dep. 15:5-8, 62:8-20, 67:12-14, ECF No. 51-4. According to Dr. Martinez, it was unlikely that the foreign body caused the perforation for a few reasons. Id. at 15:17-17:15. First, he opined that typically sharp objects cause perforations, not blunt objects. Id. at 15:17-16:10. A blunt item typically may cause an obstruction. Id. at 16:8-10.[3] Second, Dr. Martinez opined that, if a foreign body causes a perforation, it generally stays in the perforation, but in Ms. Williams' case, the CAT scan showed the foreign body material much higher than the level of perforation in the rectum. See Id. at 16:11-24, 68:17-69:1. According to December 1st and December 9th scans, the object was in the sigmoid colon area, the area adjacent to and “upstream” of the rectum. See Id. at 26:11-28:2, 72:19-73:7. The December 9th CAT scan showed abscesses, evidence of a preexisting perforation. See Id. at 73:19-74:1. At the time of her surgery on December 10th, the foreign body was in the perforation in the rectum. Id. at 73:19-73:7. Dr. Martinez believes the perforation in the rectum existed before the foreign body moved through it and that the foreign body did not cause the rectal perforation. See Id. at 16:24-17:15, 72:19-74:1. Finally, he explained that a large object may cause obstruction with progressive dilation and ultimately perforation, but in Ms. Williams' records there was no evidence of progressive dilation of the proximal colon on any X rays or CAT scans. See Id. at 17:20-19:15, 54:1-55:9.[4]

         Dr. Martinez believes Ms. Williams shares fault for the injures she suffered. Id. at 24:3-5. He opined that Plaintiff's digital manipulation of her rectum to try to dis-impact the fetal impaction and/or giving herself two enemas that caused discomfort very likely caused her rectal perforation. See Id. at 28:3-30:14, 62:8-72:18. He admitted, however, that if all she did was insert half a finger, that is unlikely to cause a perforation. Id. at 65:11-14.

         Patients may attempt to cope with fecal impaction by digitally attempting to dis-impact it. See Id. at 29:1-9, 66:4-11. In his experience, Dr. Martinez acknowledges patients also may feel discomfort and seek relief using an enema, which is reasonable. See Id. at 38:11-24, 40:11-24. It is not advisable, however, to use digital removal if the patient had no success with laxatives or enemas. See Id. at 40:11-24.

         C. Standards in Dentistry

         1. Knowledge of impression products and associated risks

         Dr. Giannini, a general dentist and undisputed expert in general dentistry with several decades of practice, including performing thousands of impression-taking procedures, is familiar with the standard of care for dentists and with the standard of care for performing dental impressions. See UF ¶¶ 7-9, ECF No. 49. Dr. Giannini's opinion is that a reasonable dentist, before using a certain product, should educate himself on what the warnings are for a given product, especially manufacturer's warnings and precautions indicated by the manufacturer. UF ¶ 13, ECF No. 49. If a manufacturer provides directions on using a product, a dentist should read the directions to make sure he is using it appropriately. See Giannini Dep. 29:16-20, ECF No. 49-1 at 22. If he is using the material within the confines of the product's purpose, Dr. Giannini reads the Material Safety Data Sheets, but would not feel the need to read additional material. See Id. at 28:4-29:15. A dentist's ...


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