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Ellis v. Bacon11/21/2005
f the defendant and establishing a genuine issue for trial. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). A plaintiff acting as his own counsel is not exempt from the requirement of procedural and substantive law, and a trial court may not otherwise shift the burden of litigation to the represented defendant in order to be "fair" to the unrepresented party. Hessmer v. Miranda, 138 S.W.3d 231 (Tenn.Ct.App.2003). When met with the affidavit of the defendant doctor alleging that his performance comported with the generally recognized standard of care, Mr. Ellis was no longer able to rely upon his pleading. He was required to provide affirmative proof to the contrary at least sufficient to create a genuine issue of material fact as to his malpractice claim. See Hessmer, 138 S.W.3d at 244, see also Tenn.Code Ann.ยง 29-26-115(a)(supp.2002). Instead of supplying this proof, Mr. Ellis alleges before this Court that he was unable to obtain his mail at the general delivery mailbox to which he had his mail delivered until some time after the entry of judgment on the defense's Motions. During the interim, he was absent from the State of Tennessee. In our de novo review of the record before us, we find that the plaintiff has failed in this malpractice action to establish any genuine issue of fact as to the standard of care applicable to Dr. Bacon or any breach by Dr. Bacon of that standard of care which proximately caused damage to the plaintiff. This is a professional malpractice action. Once Dr. Bacon responded with his expert affidavit of compliance with the applicable standard of care, Plaintiff must counter by expert evidence of deviation from such standard of care, and failure to do so is fatal on summary judgment. Bursack v. Wilson, 982 S.W.2d 341 (Tenn.Ct.App.1998). The judgment of the trial court is affirmed. Costs are assessed to Appellant.
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