Diaz v. Ohio Dep't of Rehab. & Corr.

LISA L. SADLER Judge

Sent to S.C. Reporter 11/16/23

Magistrate Gary Peterson

ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

LISA L. SADLER Judge

{¶1} Before the Court are Plaintiff's Motion for Summary Judgment and Defendant's Motion for Summary Judgment. For the following reasons, Plaintiff's Motion is DENIED and Defendant's Motion is GRANTED.

{¶2} Motions for summary judgment are reviewed under the standard set forth in Civ.R. 56(C), which states, in part:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

"[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of material fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). To meet this initial burden, the moving party must be able to point to evidentiary materials of the type listed in Civ.R. 56(C). Id. at 292-293.

{¶3} If the moving party meets its initial burden, the nonmoving party bears a reciprocal burden outlined in Civ.R. 56(E), which states, in part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.

{¶4} In the Complaint, Plaintiff, who is self-represented, states he is filing a "Malpractice Law Suit" against Defendant, Ohio Department of Rehabilitation and Correction (ODRC), through its Allen Oakwood Correctional Institution (AOCI) and Franklin Medical Center (FMC), based on the following facts as presented by Plaintiff in the Complaint. Complaint, p. 1. In August 2021, Plaintiff became ill and experienced pain on his left side by his kidney, which was a pain known to Plaintiff from his prior experience with kidney stones. Complaint, p. 2. Plaintiff presented to the nurse at AOCI, who was instructed by a doctor at AOCI to give Plaintiff a shot for his illness and pain. Complaint, p. 2. Plaintiff became unresponsive after the shot and was transferred from Defendant's medical care to outside medical facilities, including St. Rita's and Ohio State University (OSU), with gangrene on his hands and feet. Complaint, p. 3. Plaintiff returned to Defendant's medical care and started kidney dialysis at FMC to stop any infection from spreading. Complaint, p. 4. Plaintiff alleges he was not receiving proper medication, including pain medication at FMC. Complaint, p. 4. Plaintiff's hands and feet were examined every Thursday prior to treatment at FMC, but treatment was unsuccessful as his hands and feet remained infected and were not healing. Complaint, p. 4. Medical staff at FMC decided that Plaintiff needed a transfer to OSU. Complaint, pp. 4-5. At OSU, Plaintiff was stabilized and returned to FMC where unsuccessful treatment continued causing Plaintiffs fingers and toes to rot. Complaint, pp. 5-6. Plaintiff continued to treat at FMC but was transported back and forth to OSU multiple times for amputation of several fingers and toes. Complaint, p. 6. Plaintiff was eventually transferred back to AOCI where his treatment continued. Complaint, pp. 7-8. Summarizing his claims, Plaintiff states that it started with "getting a shot getting sick and passing out. Both hands and feet turning the color black. Was not given the correct Medical Treatment to salvage my left foot toes. The four tips on my right foot. On left hand two fingers. All these toes and fingers were amputated. Was also put on dialysis." Complaint, p. 1. Moreover, in Plaintiff's Motion he states that "this situation was more than mere negligence. Defendant's negligence was caused by a grossly incompetent medical procedure." Plaintiff's Motion for Summary Judgment, p. 5.

The Court will use Plaintiff's pagination in the top left corner of the Complaint for reference to the Complaint.

The Court will use Plaintiff's pagination in the bottom left corner of his Motion for Summary Judgment for reference to the Motion.

{¶5} While Plaintiff is inconsistent with his use of legal terminology throughout his pleadings and motions, it is apparent to the Court that Plaintiff brings a claim for medical malpractice rather than ordinary negligence. "Under Ohio statutory law, a 'medical claim' is defined in part as '"'any claim that is asserted in any civil action against a physician, * * * hospital, * * * or residential facility, * * * and that arises out of the medical diagnosis, care, or treatment of any person.'"' Skaggs v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 21AP-465, 2022-Ohio-2034, ¶ 29, quoting Foy v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 16AP-723, 2017-Ohio-1065, ¶ 15, quoting R.C. 2305.113(E)(3). "[A]n inmate's claim against ODRC based on the negligent acts or omissions of ODRC's medical staff sound in ordinary negligence, rather than medical malpractice, where the claimed negligence occurs in a medical context but does not arise in the course of medical diagnosis, care, or treatment of the inmate." Gibson v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 19AP-379, 2019-Ohio-4955, ¶ 15, citing Foy at ¶ 23; see also R.C. 2305.113(E)(3). However, Plaintiff's medical issues related to his kidney, gangrene, amputation, and other derivative issues are "uniquely within the purview of a medical expert and outside the general knowledge of a layperson." See Gibson at ¶ 18 ("Medical skill and judgment was necessary to determine the proper course of treatment * * * and determine whether any medication should have been prescribed * * *."); see also Kester v. Brakel, 10th Dist. Franklin No. 06AP-253, 2007-Ohio-495, ¶ 26. Therefore, Plaintiff asserts a claim for medical malpractice in the Complaint because any negligence on the part of Defendant that Plaintiff describes clearly arose from Defendant's medical diagnosis, care, or treatment of Plaintiffs medical issues.

{¶6} In Ohio, "'an inmate is under no different burden than any other plaintiff in a medical malpractice claim.'" Gibson at ¶ 10, quoting Nicely v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 09AP-197, 2009-Ohio-4386, ¶ 9. Prevailing on a claim for medical malpractice requires that "a plaintiff must prove: (1) the existence of a standard of care within the medical community; (2) the defendant's breach of that standard; and (3) proximate cause between the medical evidence and the plaintiff's injuries." Hernandez v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 17AP-37, 2017-Ohio-8646, ¶ 13, citing Adams v. Kurz, 10th Dist. Franklin No. 09AP-1081, 2010-Ohio-2776, ¶ 11. The appropriate standard of care is proven by expert testimony that explains "what a medical professional or ordinary skill, care, and diligence in the same medical specialty would do in similar circumstances." Schwind v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 22AP-230, 2022-Ohio-3995, ¶ 17, citing Bruni v. Tatsumi, 46 Ohio St.2d 127, 130, 346 N.E.2d 673 (1976). Failure to provide expert testimony establishing the standard of care is "fatal to the presentation of a prima facie case of medical malpractice." Id., citing Gibson at ¶ 10.

{¶7} In seeking summary judgment, Defendant asserts that Plaintiff cannot establish the elements of medical malpractice. In support of its Motion, Defendant submitted the affidavit of counsel for Defendant, Lauren D. Emery. Emery avers that Plaintiff did not satisfy his burden by failing to produce a report from an expert witness who will testify in this matter. Defendant's Exhibit B, Lauren D. Emery Affidavit, ¶ 2 ("To date, Plaintiff Porfirio Diaz has not served me with a copy of any expert report or medical records in lieu of an expert report from any expert witness who will testify in this matter."). L.C.C.R. 8(E) provides "[a] party may not call an expert witness to testify unless a written report has been procured from said witness" and that "[a]n expert will not be permitted to testify or provide opinions on issues not raised in the expert's report." The rule also provides that where parties are unable to obtain written reports, "the party must demonstrate that a good faith effort was made to obtain the report" and must still identify the expert. L.C.C.R. 8(E).

{¶8} Plaintiff named his urologist, Dr. Sal Paron, as an expert witness. Plaintiffs June 9, 2023 Notification of Expert Witnesses. In his Response to Defendant's Motion, Plaintiff states he has been unable to depose Dr. Paron and has subpoenaed him to testify. However, Plaintiff cannot use a subpoena for an expert to provide testimony in lieu of an expert report. See Evans v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 16AP-767, 2018-Ohio-1035, ¶ 20; L.C.C.R. 8(E). Moreover, to the extent Plaintiff's Motion or Response alleges that he has been unable to complete discovery and/or complete review of his medical records, Plaintiff has failed to properly move for and receive a continuance under Civ.R. 56(F). See Hernandez at ¶ 17, citing Mootispaw v. Mohr, 10th Dist. Franklin No. 15AP-885, 2016-Ohio-1246, ¶ 10; Commons at Royal Landing, LLC v. Whitehall, 10th Dist. Franklin No. 15AP-240, 2016-Ohio-362, ¶ 8. ("Civ.R. 56(F) provides the sole remedy for a party who must respond to a motion for summary judgment before it has completed adequate discovery."). Civ.R. 56(F) allows a party to defer ruling on a motion for summary judgment to complete discovery, but a court can grant summary judgment even if discovery remains incomplete in the absence of a non-moving party moving for a Civ.R. 56(F) continuance. See Hernandez at ¶ 17, citing Mootispaw at ¶ 10; Commons at Royal Landing at ¶¶ 9, 11. Furthermore, Plaintiff has not submitted any other admissible evidence under Civ.R. 56(C) to prove his burden to properly provide an expert witness to establish the elements of medical malpractice. Accordingly, there is no dispute that Plaintiff failed to properly provide an expert witness by failing to produce an expert report to Defendant's counsel by the deadlines imposed by the Court, which had been extended multiple times. November 2, 2022 Order of the Magistrate (setting Plaintiffs expert deadline as March 17, 2023); February 13, 2023 Order of the Magistrate (extending Plaintiff's expert deadline to June 20, 2023); July 21, 2023 Order of the Magistrate (extending Plaintiff's expert deadline to August 20, 2023).

Plaintiff also named David Caudill, CNP, from AOCI as an expert witness, but a medical provider employed by Defendant cannot be compelled to give expert testimony for Plaintiff who has not retained them as an expert. See Payne v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2015-00953JD, 2017-Ohio-9147, ¶¶ 7-10 (Nov. 20, 2017); see also Miller v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2018-00760JD (Mar. 13, 2019 Order of the Magistrate). Plaintiff does not challenge Caudill being excluded as an expert witness in his Response.

{¶9} In seeking summary judgment, Plaintiff asserts that he has met his burden for summary judgment because Defendant submitted no evidence. However, Plaintiff mistakenly shifts the burden of proof to Defendant to disprove medical malpractice. The Supreme Court of Ohio has consistently held that it is a plaintiffs burden of persuasion to establish each element in the prima facie case. See Ahmad v. AK Steel Corp., 119 Ohio St.3d 1210, 2008-Ohio-4082, 893 N.E.2d 1287, ¶ 22, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984); see also Stinson v. England, 69, Ohio St.3d 451, 455-456, 633 N.E.2d 532 (1994). Here, Plaintiff cannot establish the elements of a medical malpractice claim because, as previously discussed, he does not have an expert to establish the necessary standard of care, breach of that standard, and causal connection and, as such, has also failed to show a genuine issue of material fact.

{¶10} Defendant is entitled to judgment as a matter of law and granting of summary judgment in its favor. "Because expert medical testimony is required to support a medical negligence claim, summary judgment in favor of the defendant is proper where the plaintiff both fails to produce an expert report and does not move for and receive a continuance under Civ.R. 56(F)." Gibson at ¶ 12, citing Hernandez at ¶¶ 15-18.

{¶11} Defendant has met its initial burden, pursuant to Civ.R. 56(C), by showing that there are no genuine issues of material fact on a material element of Plaintiffs medical malpractice claim. Moreover, Plaintiff has not met his burden to properly provide an expert witness for his medical malpractice claim and, as such, has also failed to meet his initial burden pursuant to Civ.R. 56(C) or his reciprocal burden pursuant to Civ.R. 56(E).

{¶12} Accordingly, Plaintiffs Motion for Summary Judgment is DENIED, and Defendant's Motion for Summary Judgment is GRANTED. All previously scheduled events are VACATED. Court costs are assessed against Plaintiff. The Clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.