Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION
FINDINGS OF FACT
{¶1} Plaintiff, Michael Fogt, an inmate, filed a complaint against defendant, Ohio Department of Rehabilitation and Correction ("ODRC"). Plaintiff asserted on March 9, 2015, he reported to Inmate Health Services ("IHS") at approximately 7:30 a.m., to pick up his medical supplies. Plaintiff stated as he had done weekly he came to pick up his catheters and Depends due to injuries sustained on January 13, 1989, however, he was given Depends, but refused the catheters. While an order was written the next day for his catheters, on March 15, 2015, he was again sent to IHS due to passing blood every time he used the catheter as well as pain, vomiting, diarrhea, burning in his bladder, and pain in his left testicle. This problem was not resolved until he was admitted to defendant's Franklin Medical Center ("FMC") which resulted in him being hospitalized for nine days.
{¶2} Plaintiff contended by not receiving the prescribed catheters he suffered the above mentioned injuries. Plaintiff seeks damages in the amount of $10,000.00. Plaintiff was not required to pay the $25.00 filing fee.
{¶3} Defendant submitted an investigation report acknowledging that it failed to properly follow medical policy in renewing the order for catheters at the time they were requested. However, defendant stated plaintiff has failed to prove that his resulting urinary tract infection ("UTI") was the result of not receiving catheters. Defendant's investigation revealed that indeed plaintiff was denied catheters on March 9, 2016, as plaintiff asserted, however, on March 10, 2016, an advance level provider wrote an order for catheters. ODRC said the evidence revealed that plaintiff was using a catheter on March 15, 2016, when he was brought to Nurse Sick Call for Assessment. On March 16, 2016, plaintiff was diagnosed by Dr. Lyon as having the UTI due to a neurogenic bladder.
{¶4} Finally, plaintiff has presented no expert medical testimony to prove the UTI was caused by the lack of catheters for at most six days or the neurogenic bladder. Plaintiff has the burden to prove, his case by a preponderance of the evidence, but failed to meet his burden in this case and consequently judgment should be rendered in favor of defendant.
{¶5} Plaintiff filed a response to defendant's investigation report. Plaintiff asserted default judgment should be granted in his favor since defendant did not timely file the investigation report as required by R.C. 2743.10(B). A review of the docket revealed defendant was served a copy of plaintiff's form complaint on July 17, 2016, and did not file the investigation report until September 23, 2016. R.C. 2743.10(B) requires defendant to submit the investigation report within 60 days of the receipt of the form complaint. Plaintiff did not discuss the merits of ODRC's argument.
CONCLUSIONS OF LAW
{¶6} Civ.R. Civ.R. 55(D) in pertinent part states:
{¶7} "No judgment by default shall be entered against this state...or agency...unless the claimant establishes his claim...by evidence satisfactory to the court."
{¶8} A default judgment against the state may not be granted solely on procedural errors made by the defendant. Upon review, plaintiff's motion for default judgment is DENIED. Chasteen v. Dayton Correctional Institution, 2011-01721-AD, aff'd jud (2011).
{¶9} To establish a claim of medical malpractice, plaintiff "must show the existence of a standard of care within the medical community, breach of that standard of care by the defendant, and proximate cause between the medical negligence and the injury sustained." Taylor v. McCullough-Hyde Mem. Hosp., 116 Ohio App.3d 595, 599, 688 N.E.2d 1078 (12th Dist. 1996); citing Bruni v. Tatsumi, 46 Ohio St.2d 127, 131-132, 346 N.E.2d 673 (1976).
{¶10} The exception to that rule is "in cases where the nature of the case is such that the lack of skill or care of the physician and surgeon is so apparent as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it ***." Bruni at 130. However, the exception is limited in scope and "[r]elatively few courts in Ohio have found the common knowledge exception applicable so as to obviate the need for expert witness testimony on the malpractice issue." Buerger v. Ohio Dept. of Rehab. & Corr., 64 Ohio App.3d 394, 399, 581 N.E.2d 1114 (10th Dist. 1989). Plaintiff's allegation that his UTI was a result of being denied the use of catheters for at the most six days as opposed to a neurogenic bladder is not the type of situation for which this exception would apply.
{¶11} In Buerger, the Tenth District Court of Appeals found the Bruni v. Tatsumi standard applicable to a claim of medical malpractice brought by a prisoner. When a plaintiff is alleging substandard medical treatment, expert medical opinion must be provided to establish a prima facie case. Plaintiff may not simply rest upon allegations of medical negligence as stated in his complaint. See Saunders v. Cardiology Consultants, Inc., 66 Ohio App.3d 418, 420, 584 N.E.2d 809 (1st Dist. 1990); Hoffman v. Davidson, 31 Ohio St.3d 60, 61, 508 N.E.2d 958 (1987); Guth v. Huron Road Hospital, 43 Ohio App.3d 83, 84, 539 N.E.2d 670 (8th Dist. 1987). In the present claim, plaintiff has failed to produce expert medical opinion regarding his allegation that he suffers from a UTI as the result of being denied catheters for at most six days as opposed to a neurogenic bladder. The court has only his personal statements from which this court can determine the cause of plaintiff's UTI.
{¶12} "In order to recover against a defendant in a tort action, plaintiff must produce evidence which furnishes a reasonable basis for sustaining his claim. If his evidence furnishes a basis for only a guess, among different possibilities, as to any essential issue in the case, he fails to sustain the burden as to such issue." Landon v. Lee Motors, Inc., 161 Ohio St. 82, 118 N.E.2d 147 (1954), paragraph six of the syllabus.
{¶13} Plaintiff failed to prove, by a preponderance of the evidence, that his UTI was caused by the lack of catheters for a six day period. Accordingly, plaintiff's claim is DENIED. MICHAEL D. FOGT Plaintiff
v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant Case No. 2016-00529-AD Deputy Clerk Daniel R. Borchert
ENTRY OF ADMINISTRATIVE DETERMINATION
Having considered all the evidence in the claim file and, for the reasons set forth in the memorandum decision filed concurrently herewith, judgment is rendered in favor of defendant. Court costs are assessed against plaintiff.
/s/_________
DANIEL R. BORCHERT
Deputy Clerk Filed 12/1/16
Sent to S.C. Reporter 5/18/17