                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                            Assigned on Briefs June 1, 2010

                KATHY D. PARTEE V. JAIME VASQUEZ, M.D.

                 Appeal from the Circuit Court for Davidson County
                   No. 08C2702      Thomas W. Brothers, Judge


                No. M2009-01287-COA-R3-CV - Filed January 5, 2011


A woman who suffered prolonged bleeding, pain and disabling injury after gynecological
surgery filed a pro se malpractice suit against the doctor who performed the surgery. The
defendant filed a motion for summary judgment, accompanied by an affidavit in which he
testified that in his treatment of the plaintiff he complied at all times with the relevant
standard of acceptable professional practice. Unfortunately for the plaintiff, she was unable
to find an expert witness to controvert that affidavit. The trial court granted the plaintiff
several continuances to give her the opportunity to procure representation and expert
testimony, but when she was unable to do so, the trial court granted the defendant’s motion.
We affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined.

Kathy D. Partee, Oak Grove, Kentucky, Pro Se.

Thomas A. Wiseman III, James C. Sperring, Nashville, Tennessee, for the appellee, Jaime
Vasquez, M.D.

                                        OPINION

                   I. A S URGICAL P ROCEDURE AND ITS A FTERMATH

      On July 6, 2007, Ms. Kathy Partee presented to the office of Dr. Jaime Vasquez with
complaints which included fibroids, abnormal vaginal bleeding, and pelvic pain. Ms. Partee
and Dr. Vasquez discussed several options to address her problems. Ms. Partee told Dr.
Vasquez that she did not want a hysterectomy, so he suggested a surgical procedure called
a myomectomy, which is designed to remove fibroids from the uterus without removing the
uterus itself.

        Ms. Partee returned to the office of Dr. Vasquez on August 15, 2007 for further
consultation.1 According to Dr. Vasquez, he discussed non-surgical options with Ms. Partee
at this consultation, as well as the potential risks of surgery, and she gave informed consent
to the myomectomy. According to Ms. Partee’s complaint, Dr. Vasquez told her he had done
several of these surgeries, and that he could do it “with no problem.”

       On August 22, 2007, Dr. Vasquez performed the agreed-upon surgery under general
anesthesia. His surgical notes state that he surgically excised fifteen fibroids from Ms.
Partee’s uterus, with a cumulative weight of about 250 grams. Dr. Vasquez reported that
blood loss was minimal and that there were no complications. Ms. Partee was taken to the
Post-Anesthesia Care Unit in stable condition with normal vital signs.

       Ms. Partee returned to Dr. Vasquez’ office for a post-operative examination on
September 5, and he observed that she was recovering well from her surgery. Unfortunately
for Ms. Partee, her condition subsequently took a sharp turn for the worse. At a follow-up
appointment on September 17, 2007, she complained of abdominal pain, pelvic pain, pain
on urination, and symptoms of fatigue, malaise and sleeplessness. Dr. Vasquez prescribed
medication and referred her to another physician for her fatigue and related symptoms.

       Ms. Partee’s condition became even worse over the next two days. She reports that
she called Dr. Vasquez’ office on September 19, 2007 and left a message that she was
experiencing profuse bleeding and severe abdominal pain. When he did not return her call
within the hour, she went to Baptist Hospital, where she was admitted with a provisional
diagnosis of postoperative ileus. In his affidavit, Dr. Vasquez describes that condition as “a
motility disorder that is essentially a mechanical bowel obstruction, and it is a temporary
paralysis of a portion of the intestines that typically occurs after abdominal surgery.”

        Ms. Partee was treated at the hospital and underwent several diagnostic procedures
including a CT scan. The radiologists reported that no abdominal or pelvic pathology could
be found in the scan, other than a small fibroid that remained in the uterus, which could not
be removed because of its location. Dr. Vasquez stated that he consulted other physicians
to assist in Ms. Partee’s care during her hospital stay, that her symptoms waned, and that after
a week of treatment she was discharged from the hospital.


        1
          Both the affidavit of Dr. Vasquez and his brief on appeal mistakenly declare that this follow-up
consultation occurred on April 15, 2007, an obvious impossibility since the same documents state that the
initial consultation occurred on July 6, 2007.

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       Ms. Partee returned to Dr. Vasquez’ office for a scheduled appointment on October
4, 2007, during which she again reported uterine bleeding and other symptoms. Dr. Vasquez
prescribed medication and recommended that she return to his office if her symptoms
continued. According to Dr. Vasquez, Ms. Partee called his office several times after that
and he asked her to come in, but she did not do so. Finally, she did come to his office on
November 15, 2007.

       Dr. Vasquez testified that during that appointment, he advised her to see other
physicians to manage her ileus, but that she declined. He further claimed that she rejected
his advice and his suggestions as to her post-operative care. He stated that “I also learned
she was being treated by other physicians for her symptoms though she refused to give me
their names.2 On this date, Ms. Partee discharged me as her physician and I have had no
further contact with her.”

                                     II. L EGAL P ROCEEDINGS

        On August 18, 2008, Kathy Partee filed a pro se hand-written complaint in the Circuit
Court of Davidson County.3 Her complaint recites in detail all the adverse physical effects
she endured after her myomectomy, both while she was under the medical care of Dr.
Vasquez and after she discharged him. She also alleged that her continuing problems prevent
her from performing many of her normal daily activities. She claimed that Dr. Vasquez
failed to properly treat her, that he refused to administer proper treatment, and that he did not
comply with the recognized standard of acceptable practice. She accordingly asked the court
to compensate her for her pain and suffering, for emotional distress, and for the time her
husband had to take time off work because of her problems.

        On September 24, 2008 Dr. Vasquez filed an answer in which he stated that he and
the other doctors who participated in Ms. Partee’s care appropriately treated her post-
operative ileus. On October 31, 2008, he filed a motion for summary judgment, accompanied
by his affidavit. He testified that he is a gynecologist who is board certified by the American
Board of Obstetrics and Gynecology, and he described in detail his interactions with, and
medical treatment of Ms. Partee. Fifty-three pages of medical and hospital records relating
to her course of treatment were attached as an exhibit to his affidavit. He also filed a


        2
       Medical records that were introduced as an exhibit to Dr. Vasquez’ affidavit show that Ms. Partee
was admitted to Gateway Hospital in Clarksville on October 20, 2007, and was discharged a week later.
        3
         For some unaccountable reason, Ms. Partee’s complaint and some of her other filings were hand-
written on a form furnished by the United States District Court for the Middle District of Tennessee, with
a heading that bears the name of that federal court. The complaint was filed in state court, however.

                                                   -3-
Statement of Undisputed Facts. See Tenn. R. Civ. P. 56.03 Ms. Partee did not file a
response to the motion for summary judgment, nor did she respond to the Statement of
Undisputed Facts.

       For the purposes of this appeal, the most critical part of Dr. Vasquez’ affidavit is his
declaration that in his treatment of Ms. Partee, including surgery, pre-operative and post-
operative care, he at all times complied with the recognized standard of acceptable
professional practice applicable to a gynecologist practicing that specialty of medicine in
Nashville, Tennessee. When a defendant doctor in a malpractice case has sworn that he
complied with the relevant standard of care, the burden shifts to the plaintiff to present expert
testimony to controvert that assertion. Bowman v. Henard, 547 S.W.2d 527, 531 (Tenn.
1977).

       The defendant’s motion for summary judgment was scheduled to be heard in January
of 2009. However, Ms. Partee filed a motion on November 18, 2008 asking for a ninety day
continuance to enable her to secure legal representation. She filed another motion for an
extension of time on November 21, 2008 , specifically asking the court to hear the summary
judgment motion on April 3, 2009. On December 19, 2008, she filed yet another motion for
an extension of time asking to be allowed “at least 90 days before the hearing is heard to get
representation.”

        On February 13, 2009, “out of an abundance of caution,” the trial court continued the
motion for summary judgment until April 24, 2009, “thereby allowing Plaintiff time to locate
counsel and/or respond to the Motion for Summary Judgment.” On April 15, 2009, Ms.
Partee filed another motion for an extension of time, asserting that her medical records were
in the hands of attorneys who might be taking her case, and she asked for “fifteen or thirty
more days”to allow them to make a decision.

        The hearing on the summary judgment motion was finally conducted on May 1, 2009.
Ms. Partee appeared pro se, and Dr. Vasquez appeared through counsel. Ms. Partee told the
court that she was continuing her search for an attorney to enter an appearance on her behalf.
The court explained to her that a good deal of time had passed since the original filing of the
motion for summary judgment, that the court had already granted her an extension, and that
the defendant was entitled to have his motion ruled upon in a timely manner.

       In its order of May 8, 2009, the trial court stated that there was no genuine issue of
material fact and that the defendant was entitled to judgment as a matter of law. Nonetheless,
the court awarded Ms. Partee one more extension of time, by granting the defendant’s motion
for summary judgment on a conditional basis. The court instructed Dr. Vasquez’ attorney
to prepare an order granting his client summary judgment, to be entered without need for

                                               -4-
further hearing if Ms. Partee failed to enter a notice of appearance by counsel on her behalf
by 4:00 p.m. on May 22, 2009. If, however, such a notice of appearance was entered by the
stated deadline, the court declared that it would conduct another hearing on the motion for
summary judgment on June 5, 2009.

       Ms. Partee did not file a notice of appearance by the deadline, nor did she file an
affidavit setting forth testimony sufficient to demonstrate that there is a genuine issue of
material fact in this case. The court accordingly granted summary judgment to Dr. Vasquez.
This appeal followed.

                                        III. A NALYSIS

       A trial court’s decision on a motion for summary judgment enjoys no presumption of
correctness on appeal. Martin v. Norfolk Southern Railway Co., 271 S.W.3d 76, 84 (Tenn.
2008); Blair v. West Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the
summary judgment decision as a question of law. Id. Accordingly, this court must review
the record de novo and make a fresh determination of whether the requirements of Tenn. R.
Civ. P. 56 have been met. Eadie v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004);
Blair, 130 S.W.3d at 763. Those requirements are that the filings supporting the motion
show that there is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. Tenn. R. Civ. P. 56.04; Blair, 130 S.W.3d at 764.

       The moving party has the burden of demonstrating it is entitled to judgment as a
matter of law and that there are no material facts in dispute. Martin, 271 S.W.3d at 83;
McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998). To be entitled
to summary judgment, a defendant moving party must either (1) affirmatively negate an
essential element of the non-moving party’s claim or (2) show that the nonmoving party
cannot prove an essential element of the claim at trial. Hannan v. Alltel Publishing Co., 270
S.W.3d 1, 9 (Tenn. 2008).

        If the party seeking summary judgment makes a properly supported motion, the
burden shifts to the nonmoving party to set forth specific facts establishing the existence of
a genuine issue of material fact. Martin, 271 S.W.3d at 84; Hannan, 270 S.W.3d at 5;
Staples v. CBL & Associates, 15 S.W.3d 83, 86 (Tenn. 2000) (citing Byrd v. Hall, 847
S.W.2d at 215). If, and only if, the moving party successfully negates an essential element
of the nonmoving party’s claim or demonstrates the nonmoving party’s inability to prove an
essential element at trial, the burden shifts to the non-moving party to at least create a dispute
of fact as to that element. Hannan v. Alltel Publishing Co., 270 S.W.3d at 7 (discussing
McCarley).



                                               -5-
       In our review, we must consider the evidence presented at the summary judgment
stage in the light most favorable to the non-moving party, and we must afford that party all
reasonable inferences. Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001);
Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504, 507 (Tenn. 2001).

       When a properly supported motion for summary judgment is made, “an adverse party
may not rest upon the mere allegations or denials of the adverse party’s pleading, but his or
her response, by affidavits or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. If the adverse party does not so respond,
summary judgment, if appropriate, shall be entered against the adverse party.” Tenn. R. Civ.
P. 56.06. See also Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993).

       In her complaint, Ms. Partee claimed that in treating her, Dr. Vasquez failed to comply
“with the recognized standard of acceptable practice,” and that she suffered injury as a result.
Dr. Vasquez testified by affidavit that in treating Ms. Partee, he had complied with the
recognized standard of acceptable professional practice applicable to a gynecologist in
Nashville, Tennessee. He thereby triggered her obligation under Tenn. R. Civ. P. 56.06. to
present appropriate testimony to refute his affidavit.

       An action against a physician for injuries arising from negligent medical care is an
action for medical malpractice. Such actions are controlled by Tenn. Code Ann. § 29-26-
115, which, while based upon the common law elements of negligence, sets out special
requirements of proof which must be met in order to establish a malpractice claim. See
Gunter v. Lab. Corp. of America, 121 S.W.3d 636, 639 (Tenn. 2003); Kilpatrick v. Bryant,
868 S.W.2d 594, 598 (Tenn. 1993). Every one of these elements must be proved by expert
testimony (Tenn. Code Ann. § 29-26-115(b)). Bowman v. Henard, 547 S.W.2d at 531.

        Tennessee Code Annotated § 29-26-115(a) places upon the party claiming that
malpractice occurred the burden of proving the recognized standard of professional care in
the specialty practiced by the defendant; that the defendant failed to act in accordance with
that standard; and that as a proximate result of the defendant’s act or omission, the claimant
suffered an injury which otherwise would not have occurred. Gunter v. Lab. Corp. of
America, 121 S.W.3d at 140; Moon v. St. Thomas Hospital, 983 S.W3d 225, 229 (Tenn.
1998).

       In order to testify as an expert witness under Tenn. Code Ann. § 29-26-115(b) the
proffered witness must be a health care professional licensed to practice in the state of
Tennessee or a contiguous state, in a profession or specialty “which would make that
person’s expert testimony relevant to the issues in the case and had practiced the profession
or specialty in one (1) of those states during the year preceding the date that the alleged injury

                                               -6-
occurred.” Tenn. Code Ann. § 29-26-115(b).4 Without such expert testimony, there is no
chance of success in a medical malpractice suit.

       As we stated above, Dr. Vasquez testified that in treating Ms. Partee, he had complied
with the recognized standard of acceptable professional practice applicable to a gynecologist
in Nashville, Tennessee. When a defendant doctor in a malpractice case has sworn that he
complied with the relevant standard of care, the burden shifts to the plaintiff to present expert
testimony to controvert that assertion. If the plaintiff cannot meet that burden, then the
defendant doctor’s affidavit constitutes a sufficient basis for dismissal of the action on
summary judgment. Bowman v. Henard, 547 S.W.2d at 531; Fitts v. Arms, 137 S.W.3d 187,
190 (Tenn. Ct. App. 2003); Smith v. Graves, 672 S.W.2d 787, 790 (Tenn. Ct. App. 1984).

       The trial court recognized that Ms. Partee would have a hard time finding an expert
competent under Tenn. Code Ann. § 29-26-115(b) to execute an affidavit to refute the
affidavit of Dr. Vasquez and that she would need legal representation in order to succeed.
The court accordingly granted Ms. Partee’s motion for continuance, by delaying the
scheduled summary judgment hearing from January to April of 2009. When Ms. Partee
appeared at the hearing and pled for more time to find an attorney, the trial court held back
the entry of a summary judgment in order to give her the time she requested. In total, Ms.
Partee was allowed more than six months to locate counsel and/or respond to the motion for
summary judgment.

         Parties who represent themselves are entitled to fair and equal treatment by the courts,
and the courts should take into account that many pro se litigants have no legal training and
little familiarity with the judicial system. Hessmer v. Hessmer, 138 S.W.3d 901 (Tenn. Ct.
App. 2003); Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000);
Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997).
The courts accordingly give pro se litigants who are untrained in the law a certain amount
of leeway in drafting their pleadings and briefs. Whitaker v. Whirlpool Corp., 32 S.W.3d at
227; Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d at 397; Irvin v. City of
Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988).



        4
         Our legislature imposed new requirements on parties to medical malpractice cases in 2008 and 2009.
Tenn. Code Ann. § 29-26-121 now requires a plaintiff to give notice of the potential malpractice claim to the
health care provider who is to be named the defendant at least 60 days prior to filing suit. Tenn. Code Ann.
§ 29-26-122 requires the plaintiff or plaintiff’s counsel to obtain a signed written certificate of a competent
medical expert, stating that there is a good faith basis to maintain the action consistent with Tenn. Code Ann.
§ 29-26-115. The certificate of good faith must be filed with the complaint. Failure to file such a certificate
can result in dismissal of the complaint with prejudice. [2008 Acts, ch. 919; 2009 Acts ch. 425]. The timing
of Ms. Partee’s complaint of August 18, 2008 makes the two statutes ineffective as to her claim.

                                                     -7-
        However, the courts must also be mindful of the boundary between fairness to a pro
se litigant and unfairness to the pro se litigant’s adversary. Thus, the courts must not excuse
pro se litigants from complying with the same substantive and procedural rules that
represented parties are expected to observe. Edmundson v. Pratt, 945 S.W.2d 754, 755
(Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 733 n. 4 (Tenn. Ct. App. 1995).
Accordingly, despite her pro se status, Ms. Partee was not excused from filing a properly
supported response to Dr. Vasquez’ motion for summary judgment. Since she did not do so,
she has not created a dispute of material fact. The trial court did not err in holding that Dr.
Vasquez is entitled to summary judgment as a matter of law.

                                             IV.

       The judgment of the trial court is affirmed. We remand this case to the Circuit Court
of Davidson County for any further proceedings necessary. Tax the costs on appeal to the
appellant, Kathy Partee.




                                                    _________________________________
                                                    PATRICIA J. COTTRELL, JUDGE




                                              -8-
