Evans v. Ohio Dep't of Rehab. & Corr.Evans v. Ohio Dep't of Rehab. & Corr.
Rendered on March 20, 2018
On brief: William H. Evans, Jr., pro se.
On brief: Michael DeWine, Attorney General, and Lindsey M. Grant, for appellee.
APPEAL from the Court of Claims of Ohio
KLATT, J.
{¶ 1} Plaintiff-appellant, William H. Evans, Jr., appeals from a judgment of the Court of Claims of Ohio in favor of defendant-appellee, Ohio Department of Rehabilitation and Correction (“ODRC“) following a bench trial. Because appellant‘s complaint stated a medical claim and appellant failed to present any evidence establishing the standard of care, breach of the standard of care, and that the breach was the proximate cause of his injury, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 15, 2015, Evans, an inmate at the Ross Correctional Institution (“RCI“), filed a complaint against ODRC. In the complaint, Evans alleged that he suffers
{¶ 3} Prior to trial, Evans asked that the trial court issue several subpoenas. On February 3, 2016, he filed requests for three subpoenas to be delivered at Ohio State University-Medical Center, 480 Medical Center Drive, Columbus, Ohio 43215 for Laura Phieffer, M.D. (surgeon); Makulic, M.D.; and Dr. Robert Alan Bornstein (vice dean/college of medicine). He also requested a subpoena to be issued to John DesMarais-medical director, Ohio Department of Rehabilitation and Correction, 770 West Broad St., Columbus, Ohio 43222. These witnesses were commanded to attend and give testimony at trial and to produce an “expert report.” On March 25, 2016, Evans filed two additional requests for subpoenas. These subpoenas were addressed to Melissa Hawk-nurse practitioner, and Kelli Cardaras-nurse practitioner at RCI, P.O. Box 7010, 16149 SR 104, Chillicothe, Ohio 45601. Hawk and Cardaras were commanded to attend and give testimony at trial and to produce all medical records for Evans from 2005 through 2016.
{¶ 4} The trial court issued the six subpoenas on April 27, 2016. A notice of failure of service was returned for DeMarais as he no longer worked at the address provided by Evans. The returns of service for the Phieffer, Makulic, and Bornstein subpoenas showed that these subpoenas were all delivered by the same deputy sheriff on May 2, 2016 at 8:47 a.m., and indicated “Residential Service Security.” According to the returns of service for the Hawk and Cardaras subpoenas, a deputy sheriff served the subpoenas on May 6, 2016 by residential service. ODRC filed a motion to quash the subpoenas duces tecum issued to Hawk, Cardaras, Bornstein, Phieffer, and Makulic.
{¶ 5} On May 11, 2016, Evans requested that the trial court issue two more subpoenas. These were addressed to Gary Mohr-director and John Doe-medical director at Ohio Department of Rehabilitation and Correction, 770 West Broad St., Columbus, Ohio 43222. The witnesses were commanded to attend and give testimony at trial and to produce an “expert report.” The returns of service showed that the subpoenas were served
{¶ 6} On May 25, 2017, the case proceeded to trial before a magistrate on the issue of liability and was held at RCI. As an initial matter, the magistrate granted ODRC‘s two motions to quash. Evans testified and submitted four exhibits for admission. ODRC moved for dismissal pursuant to
{¶ 7} The magistrate recommended that the
{¶ 8} Evans filed objections to the magistrate‘s decision. He argued that the magistrate erred in quashing the subpoenas because the failure of proper service was the fault of the state and that magistrate erred in refusing to continue the trial. He asserted that delivery of the subpoenas to security personnel did not constitute improper service. Evans also alleged that the exhibits admitted at trial conclusively established medical facts and continued to dispute that his complaint constituted a medical malpractice claim. He argued that because the only defendant was the “State,” it could not be a medical malpractice claim but was really a claim in negligence for the violation of
{¶ 9} The trial court denied Evans’ objections. It noted that neither a transcript of the May 25, 2017 trial nor an affidavit of evidence was filed within 30 days of the filing of the objections as required by
{¶ 10} Evans appeals, assigning the following errors:
[I.] TRIAL COURT ERRED IN FAILING TO APPLY
O.R.C.§2921.44(C)(2) , AS NEGLIGENTLY FAILING TO PROVIDE ADEQUATE MEDICAL ATTENTION, WHERE§2307.60(A) PROVIDES AS OF RIGHT A CIVIL ACTION FOR VIOLATION OF A CRIMINAL STATUTE.[II.] TRIAL COURT ERRED IN DESIGNATING THIS ACTION AS A “MEDICAL CLAIM“.
[III.] TRIAL COURT ERRED IN FAILING TO RENDER JUDGMENT IN FAVOR OF PLAINTIFF-APPELLANT EVANS AS A MATTER OF LAW.
[IV.] TRIAL COURT ERRED AND VIOLATED DUE PROCESS OF LAW IN FAILING TO EITHER ORDER THAT ALL SUBPOENA‘S WERE PROPERLY SERVED FOR TRIAL, AND ORDERING THAT ALL WITNESS‘ES ATTEND, OR OTHERWISE TO RESCHEDULE THE TRIAL, VIOLATING THE 14th.AMENDMENT, U.S. CONSTITUTION AND OHIO CONSTITUTION ARTICLE I §16, VOIDING FUNDAMENTAL FAIRNESS, DUE PROCESS, AND EQUAL PROTECTION OF LAW.
(Sic passim.)
LEGAL ANALYSIS
{¶ 11} We will begin by addressing the fourth assignment of error which raises a pretrial issue. Evans argues that the trial court erred in granting ODRC‘s motions to quash the subpoenas and denying his request to continue the trial to secure the witnesses’ attendance. He states that some of the witnesses were “treating physicians” and employees of ODRC. He contends that these facts gave him the right to have the witnesses present at trial and subject them to direct examination.
{¶ 12} Generally, an appellate court reviews a trial court‘s ruling to quash or enforce a subpoena under an abuse-of-discretion standard. Bell v. Nichols, 10th Dist. No. 10AP-1036, 2013-Ohio-2559, ¶ 36. Absent an abuse of discretion, an appellate court must affirm a trial court‘s disposition of discovery issues. Bd. of Clark County Commrs. v. Newberry, 2d Dist. No. 2002-CA-15, 2002-Ohio-6087, ¶ 13. The term “abuse of discretion” implies
{¶ 13} In its motion to quash, ODRC argued that the subpoenas should be quashed because (1) Evans failed to tender the required witness fees and mileage, (2) the subpoenas issued to Hawk and Cardaras were an impermissible substitution for discovery, (3) the subpoenas issued to Phieffer, Bornstein, and Makulic were improper attempts to force uncompensated individuals to create expert reports, and (4) none of the subpoenas were properly served as they were left with security at the witnesses’ places of employment. In support of its motion, ODRC attached the affidavit of the investigator for RCI. He stated that the subpoenas for Hawk and Cardaras were left at the front security desk at RCI and that the subpoenas were neither handed nor read to Hawk or Cardaras by the Ross County Sheriff or a deputy sheriff.
{¶ 14} The second motion to quash the subpoenas for Mohr and John Doe raised these same arguments and two additional arguments. ODRC contended that the subpoenas should also be quashed because they were untimely and because the witnesses were not included in Evans’ pretrial statement or discovery.
{¶ 15} Evans seemed to acknowledge in his memorandum in opposition that he did not remit any witness fees or mileage. Instead, he contended that witness fees were not required for subpoenas duces tecum and that witness fees should not apply to him as he earns only $6.00 a month.
{¶ 16}
Service of a subpoena upon a person named therein shall be made by delivering a copy of the subpoena to the person, by reading it to him or her in person, by leaving it at the person‘s usual place of residence, or by placing a sealed envelope containing the subpoena in the United States mail as certified or express mail return receipt requested * * *, and by tendering to the person upon demand the fees for one day‘s attendance and the mileage allowed by law. * * * If the witness being subpoenaed resides outside the county in which the court is located, the fees for one day‘s attendance and mileage shall be tendered without demand.
{¶ 17} The failure to tender fees renders a subpoena defective. A.O. Smith Corp. v. Perfection Corp., 10th Dist. No. 03AP-266, 2004-Ohio-4041, ¶ 26. A witness cannot be
{¶ 18} Evans is correct to the extent that the failure to tender witness fees does not affect the enforceability of the production of documents under the subpoena. Trick v. Scherker, 2d Dist. No. 26461, 2015-Ohio-2972, ¶ 19 (the failure to tender fees did not relate to request to produce documents in a subpoena duces tecum). But, a subpoena duces tecum may not be used as a substitute of discovery from a party.
A subpoena may not be used to obtain the attendance of a party or the production of documents by a party in discovery. Rather, a party‘s attendance at a deposition may be obtained only by notice under
Civ.R. 30 , and documents or electronically stored information may be obtained from a party in discovery only pursuant toCiv.R. 34 .
{¶ 19} In this case, Evans requested that Hawk and Cardaras, who were employees at RCI, produce all his medical records and files from 2005 through 2016 that are in the possession of ODRC. This request for documents should have been directed to ODRC pursuant to
A separate medical record of every inmate in an institution governed by the department shall be compiled, maintained, and kept apart from and independently of any other record pertaining to the inmate. Upon the signed written request of the inmate to whom the record pertains together with the written request of either a licensed attorney at law or a licensed physician designated by the inmate, the department shall make the inmate‘s medical record available to the designated attorney or physician. The record may be inspected or copied by the inmate‘s designated attorney or physician.
There is nothing in the record to indicate that Evans complied with
{¶ 20} With regard to subpoena duces tecum for Phieffer, Makulic, Bornstein, Mohr, and John Doe, medical director at ODRC, Evans requested that these witnesses produce an expert report as defined under
[r]equires disclosure of a fact known or opinion held by an expert not retained or specially employed by any party in anticipation of litigation or preparation for trial as described by
Civ.R. 26(B)(5) , if the fact or opinion does not describe specific events or occurrences in dispute and results from study by that expert that was not made at the request of any party.
In his pretrial statement, Evans identified only Bornstein as an expert witness. However, there is nothing in the record that indicates that either ODRC or Evans retained him or any of the other witnesses as experts.
{¶ 21} Ultimately, our ability to review this assignment of error is hampered by two factors. First, no written decision on ODRC‘s motions to quash appears in the record. The magistrate‘s decision from the trial indicates that he orally granted the motions to quash at the commencement of trial without further explanation. Second, Evans failed to provide a transcript of the trial or an affidavit of evidence.
{¶ 22}
{¶ 23} Without a transcript, we cannot know the substance of the evidence produced in support of or contrary to the motions to quash or the basis of the magistrate‘s ruling. We also do not know whether Evans requested a continuance of the trial or the reason the magistrate denied that request. Absent a transcript, we must presume the regularity of the proceedings below and affirm the trial court‘s decision. Lee v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 06AP-625, 2006-Ohio-6658, ¶ 10, citing Edwards v. Cardwell, 10th Dist. No. 05AP-430, 2005-Ohio-6758, ¶ 4-6.
{¶ 24} We therefore overrule the fourth assignment of error.
{¶ 26}
Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney‘s fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.
{¶ 27} The Supreme Court of Ohio has held that the plain and unambiguous language of the above statute “creates a civil cause of action for damages resulting from any criminal act, unless otherwise prohibited by law.” Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, ¶ 13. Therefore, it is possible for Evans to raise a violation of
{¶ 28}
{¶ 29} Evans states that in later filings he informed the trial court that he was presenting a negligence claim based on the duty owed to him pursuant to
{¶ 30} The complaint does not make it clear that Evans was pursuing a statutory violation claim against ODRC. Also, without a transcript, we do not know whether Evans argued at trial that he was presenting a claim for a violation of
{¶ 31} In the second assignment of error, Evans argues that the trial court erred in designating this action as a medical claim. “Medical claim” is defined by
“Medical claim” means any claim that is asserted in any civil action against a physician, podiatrist, hospital, home, or residential facility, against any employee or agent of a physician, podiatrist, hospital, home, or residential facility, or against a licensed practical nurse, registered nurse, advanced practice registered nurse, physical therapist, physician assistant, emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical technician-paramedic, and that arises out of the medical diagnosis, care, or treatment of any person. “Medical claim” includes the following:
(a) Derivative claims for relief that arise from the plan of care, medical diagnosis, or treatment of a person;
(b) Claims that arise out of the plan of care, medical diagnosis, or treatment of any person and to which either of the following applies:
(i) The claim results from acts or omissions in providing medical care.
(ii) The claim results from the hiring, training, supervision, retention, or termination of caregivers providing medical diagnosis, care, or treatment.
{¶ 32} Evans argues that his claim cannot be a “medical claim” because ODRC is the named defendant, and ODRC is not included in
{¶ 33} In Franks, an inmate with physical limitations was moved from a first floor cell to a third floor cell. A nurse refused to provide him with a first floor medical restriction. The inmate then fell down a flight of stairs. We held that “it was premature for the trial court to conclude that appellant has asserted a medical claim” as the pleadings failed to establish that ODRC was one of the enumerated medical providers in
{¶ 34} In Foster, an inmate claimed that he suffered injury when he fell from the top bunk. He alleged that ODRC personnel had forced him to sleep in a top bunk despite his health conditions. He had been previously issued a temporary lower bunk restriction but a doctor employed by ODRC refused to reissue the restriction when the temporary one expired. We noted that a medical examination as a precondition for a benefit was distinguishable from an examination for purposes of medical diagnosis, care, or treatment. Foster at ¶ 34. Because ODRC failed to provide evidence that the claim involved the medical diagnosis, care, or treatment of Foster, we reversed the grant of summary judgment.
{¶ 35} Unlike Franks or Foster, the magistrate‘s decision that Evans presented a medical claim was based on the evidence produced at trial and not summary judgment. Also, neither case establishes as a rule that a medical claim may not be brought against ODRC. Although not enumerated in
{¶ 36} Evans also argues that his action is not a medical claim because his complaint alleged a violation of
{¶ 37} The second assignment of error is overruled.
{¶ 38} In the third assignment of error, Evans argues that the trial court erred in failing to render judgment in his favor. Evans contends that ODRC‘s admissions pursuant to
{¶ 39} In order to recover for medical malpractice, 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. Adams v. Kurz, 10th Dist. No. 09AP-1081, 2010-Ohio-2776, ¶ 11. A medical malpractice claimant must provide proof of the recognized standard of care in the medical community through expert testimony. Bruni v. Tatsumi, 46 Ohio St.2d 127, 131-32 (1976).
{¶ 40} Evans did not present any expert testimony at trial. Instead, Evans appears to rely on the admissions from ODRC that he entered into evidence. Contrary to his belief, however, the admissions do not establish that ODRC breached the standard of care or that it negligently failed to provide adequate medical attention. In the requests for admissions, Evans asked ODRC to admit that he had certain conditions such as bipolar affective disorder, degenerative disc disease, scoliosis, deformed feet with bilateral fracture history, COPD, artificial hip replacement, and osteoporosis. He also requested admissions that he had been prescribed at various times certain medications such as Rameron, Prozac, Lamictal, Ultram, Neurontin, albuterol, Q-Var, and Atrovent. ODRC did admit that the medical records for Evans included the “phrases” as listed above and that he had been prescribed the medications at various times and that some of the medications had been discontinued by medical personnel. There was no admission, however, that RCI medical
{¶ 41} The magistrate found and the trial court agreed that medical skill and judgment was necessary to determine the proper course of treatment for Evans’ deformed feet and hip replacement, to determine whether certain medication should or should not have been prescribed to Evans and to determine the appropriate method of ingesting medication for maximum effectiveness. The magistrate rejected any argument that “common knowledge” exception applied to the requirement for expert testimony.
{¶ 42} Because there is no transcript, we are unable to review the magistrate‘s finding that medical skill and judgment is necessary to treat each of the ailments that is the basis of the complaint and that Evans stated a claim for medical malpractice. We do know that Evans did not present any expert testimony to establish the standard of care, breach of that standard, and proximate cause. Without that expert testimony, Evans failed to prove his claim by a preponderance of the evidence and, therefore, the trial court did not err in rendering judgment for ODRC. The third assignment of error is overruled.
{¶ 43} For the foregoing reasons, the assignments of error are overruled, and we affirm the judgment of the Court of Claims of Ohio.
TYACK and DORRIAN, JJ., concur.
Judgment affirmed.