United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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.
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.
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.
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.
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.
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.
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.
The foreign body
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.
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
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.
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.
Cause of colon perforation
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. 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,
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.
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.
Standards in Dentistry
Knowledge of impression products and associated
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