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Ellis v. Bacon11/21/2005
This appeal results from a medical malpractice claim. Edward Ellis, Jr., after an initial non-suit, filed a second complaint in Circuit Court for Sumner County alleging malpractice on the part of John W. Bacon, M.D. In the complaint which he filed on May 3, 2004, pro se, Mr. Ellis alleged that Dr. Bacon had damaged his sciatic nerve while performing a right hip replacement surgery.
Dr. Bacon answered the complaint on May 28, 2004, denying negligence, raising the statute of limitations as a bar to the claim and raising as an additional affirmative defense Mr. Ellis's informed consent. According to defense counsel's certification, a copy of the Notice of Appearance of Counsel and Answer was sent to Mr. Ellis at 609 S. 6th Street, Nashville, Tennessee, 37206. The plaintiff's only other address appearing in the record before us is the general delivery address to which Mr. Ellis had his mail delivered in the course of the litigation. On June 14, 2004, counsel for Dr. Bacon forwarded his first set of interrogatories to Mr. Ellis at the 609 S. 6th Street address. On that same date counsel sent requests for admission. Defense counsel then sent a letter to Mr. Ellis requesting supplementary discovery including an audio taped copy of a prior telephone conversation in which defense counsel agreed to extend the discovery deadline "an additional 15 days."
By letters dated September 8 and September 22, 2004, defense counsel asked that Mr. Ellis comply with the prior discovery requests. Despite these letters, Mr. Ellis never completely provided this discovery. In addition, the record does not show any attempt of discovery on the part of Mr. Ellis. On November 15, 2004, Dr. Bacon, through counsel, filed his Motion for Summary Judgment accompanied by the doctor's affidavit containing the following averments:
7. My treatment and care of Edward Ellis, Jr., before, during and after the full right hip replacement performed on February 5, 2002 at Sumner Regional Medical Hospital in Gallatin, Tennessee, did not fall below the recognized standard of acceptable professional practice in Nashville and Gallatin, Tennessee.
8. To the extent the plaintiff has any injuries to his right hip area or sciatic nerve, those injuries are not the result of any negligent act or omission which is alleged to have occurred during the full right hip replacement surgery.
In addition to this Motion, counsel filed a Motion to Deem the Admission Requests Admitted for the purposes of summary judgment. Mr. Ellis failed to respond to either motion and failed to appear on the date of the hearing indicated on Defendant's Motion for Summary Judgment.
Since a more compelling reason exists for sustaining summary judgment it is not necessary to discuss these procedural and factual shortcomings.
On December 15, 2004, the trial court heard the Motion for Summary Judgment and entered an order drafted by defense counsel and forwarded to Mr. Ellis at the 609 S. 6th Street address pursuant to the certificate of service. On January 13, 2005, Mr. Ellis filed his Notice of Appeal in the trial court, and the case is now before us for review of the summary judgment grant. Although pro se parties are afforded a liberal interpretation of their pleadings and briefs before our courts, this liberal construction cannot create rights where none exist. Mr. Ellis, as appellant, bears the burden of properly preparing a record on appeal. Tenn. Rule App. P. 24.
When a defendant comes forward with proof negating an essential of the plaintiff's claim, that plaintiff so challenged is no longer entitled to rely solely on the pleadings, but must offer proof of his own rebutting that o
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