RAYMOND FOY v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
No. 16AP-723 (Ct. of Cl. No. 2014-00916), No. 16AP-724 (Ct. of Cl. No. 2015-01008)
IN THE COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT
March 23, 2017
2017-Ohio-1065
SADLER, J. DORRIAN and LUPER SCHUSTER, JJ., concur.
(ACCELERATED CALENDAR)
On brief: Michael DeWine, Attorney General, and Timothy M. Miller, for appellee.
APPEALS from the Court of Claims of Ohio
SADLER, J.
{1} Plaintiff-appellant, Raymond Foy, appeals from a judgment of the Court of Claims of Ohio in favor of defendant-appellee, Ohio Department of Rehabilitation and Correction (“DRC“). For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{2} Appellant is an inmate at Toledo Correctional Institution (“TCI“). Appellant suffers from a condition known as bilateral corneal opacity, or cloudy vision, caused by scarring of a portion of the corneas in each of his eyes. On November 21, 2014, appellant filed a complaint against DRC in case
{3} On December 8, 2015, appellant filed a complaint against DRC in case
{4} On October 16, 2015, DRC filed a motion for summary judgment in case
{5} On June 1, 2016, appellant filed a motion for summary judgment arguing that he was entitled to judgment in his favor because DRC admitted facts supporting his claim for relief by failing to timely respond to appellant‘s request for admissions. On June 7, 2016, DRC moved the Court of Claims for leave to withdraw its inadvertent admission pursuant to
{6} On August 12, 2016, DRC filed a second motion for summary judgment both as to the claims alleged by appellant and the personal immunity of Dr. Eddy. DRC supported the motion with the affidavit of Dr. Eddy. Dr. Eddy‘s affidavit provides, in relevant part, as follows:
2. I graduated from the Northeastern Ohio University College of Medicine in 1983 with a Doctor of Medicine. I have been * * * licensed as a medical doctor in the State of Ohio since July 11, 1984. I am board certified by the American Board of Internal Medicine.
3. I am employed by the Ohio Department of Rehabilitation and Correction (ODRC) as the State Medical Director. As part of my job duties, I [am] responsible for the overall supervision of inmate medical services including, but not limited to, the overall planning, design, implementation, monitoring, utilization management, and evaluation of medical services provided within ODRC.
4. Through my employment with ODRC, I have personal knowledge of ODRC rules, regulations, protocols, policies and procedures regarding inmate medical diagnosis, treatment and care, including, but not limited to, ODRC Policy No. 68-MED-01, ODRC Policy No. 68-Med-14 and ODRC Protocol B-1.
5. In my role as the State Medical Director for ODRC, I am charged with determining what constitutes medically necessary care and treatment for inmates in the state‘s custody. This includes determining, through the Collegial Review Process outlined in ODRC Policy No. 68-MED-01 and Medical Protocol B-1, whether it is medically necessary for an inmate to receive specialty services that are beyond the resources available at an institution. A request for an inmate to receive specialty services is generated by filling out a consultation request form. * * *
13. In the scope and course of my duties, as part of the Collegial Review Process, I reviewed [appellant‘s] medical records and/or discussed [appellant‘s] condition with medical personnel as TOCI in order to determine whether it was medically necessary for [appellant] to see a corneal specialist. Again, [appellant‘s] medical records indicated that the corneal scarring on [appellant‘s] eyes had been stable for several years. Additionally, there was no indication whether the depression in [appellant‘s] visual acuity was legitimate or malingering. Therefore, based upon my training, education, and experience, I made a medically appropriate determination that any depression in [appellant‘s] visual acuity was unrelated to his corneal scarring because it had remained unchanged for several years. Accordingly, I determined that it was not medically necessary for [appellant] to see a corneal specialist.
* * *
15. If I had determined that it was medically necessary for [appellant] to see a corneal specialist, ODRC would have sent him to see a corneal specialist at no cost to [appellant].3
{7} DRC‘s motion for summary judgment is also supported by the affidavit of legal counsel, Assistant Attorney General Timothy M. Miller, who avers that “[a]t no point has [appellant] provided me with the names of any expert witnesses or any expert reports in regard to either Case Number 2014-00916 or Case Number 2015-01008.” (Miller Aff. at 2.)
{9} On October 7, 2016, the Court of Claims issued a decision granting DRC‘s motion for leave to withdraw admissions, denying appellant‘s motion for summary judgment, and granting DRC‘s motion for summary judgment. In its decision, the Court of Claims found that appellant‘s complaint stated a claim for relief against DRC sounding in medical negligence and that Dr. Eddy‘s affidavit satisfied DRC‘s burden of producing evidence that DRC met the applicable standard of care in the treatment of appellant‘s corneal opacity/scarring. Because appellant failed to produce the testimony of a competent medical expert to rebut Dr. Eddy‘s opinions, the Court of Claims concluded that there were no genuine issues of material fact as to appellant‘s medical claim and that DRC was entitled to judgment as a matter of law. The Court of Claims also determined that Dr. Eddy did not act in a reckless manner when he concluded that it was not medically necessary for appellant to see a corneal specialist and that Dr. Eddy was entitled to personal immunity as a matter of law.
{10} Appellant timely appealed to this court from the judgment of the Court of Claims.
II. ASSIGNMENTS OF ERROR
{11} Appellant assigns the following as trial court error:
[1.] The court of claims decision should be reversed because if erroneously styled and analyzed Plaintiff claims as one of medical malpractice and Failed to rule on his ordinary negligence Claims.
[2.] The court of claims decision should be reversed because defendant affidavits conflicts with its pre answers to complaint and response to Admission.
III. STANDARD OF REVIEW
{12} Appellate review of summary judgments is de novo. MacDonald v. Authentic Invests., LLC, 10th Dist. No. 15AP-801, 2016-Ohio-4640, ¶ 22; Titenok v. Wal-Mart Stores E., Inc., 10th Dist. No. 12AP-799, 2013-Ohio-2745, ¶ 6. Summary judgment is proper only when the party moving for summary judgment demonstrates: (1) no genuine issue of material fact exists, (2) the moving parties are entitled to judgment as a matter of law, and (3) reasonable minds could 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 most strongly construed in its favor.
{13} Pursuant to
IV. LEGAL ANALYSIS
A. First Assignment of Error
{14} In appellant‘s first assignment of error, appellant contends that the Court of Claims erred when it construed his claim for relief as a medical claim, rather than a claim sounding in ordinary negligence, and granted summary judgment for DRC. We disagree.
{15} The Court of Claims construed appellant‘s claim for relief as a “medical claim” as defined in
{16} In Helfrich v. Allstate Ins. Co., 10th Dist. No. 12AP-559, 2013-Ohio-4335, the specific question raised by the appeal was whether a counterclaim alleged a claim for defamation or ordinary negligence. This court relied on the following guiding principle in making the determination: ” ’ ” ‘[C]ourts must look to the actual nature or subject matter of the case, rather than to the form in which the action is pleaded. The grounds for bringing the action are the determinative factors, the form is immaterial.’ ” ’ ” Id. at ¶ 28, quoting Montgomery v. Ohio State Univ., 10th Dist. No. 11AP-1024, 2012-Ohio-5489, ¶ 13, quoting Love v. Port Clinton, 37 Ohio St.3d 98, 99 (1988), quoting Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183 (1984).
{17} In Wilson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 91AP-36 (Apr. 9, 1991), an inmate filed an action against DRC alleging that DRC employees had prescribed clear eyeglasses for him when he was medically required to wear rose-tinted glasses. The Court of Claims granted summary judgment in favor of DRC. In affirming the judgment of the Court of Claims, this court held as follows:
DRC provided medical testimony, through the affidavit of Dr. Duncan, which indicated that rose-tinted glasses were not medically necessary for appellant. There was no evidence in the record to the contrary. In order to prove medical negligence, appellant needed to provide medical testimony that Dr. Duncan, the physician who treated him at the prison, acted below the accepted standard of care. See Bruni v. Tatsumi (1976), 46 Ohio St. 2d 127. Appellant failed to do so and the trial court properly granted summary judgment in favor of DRC.
Id.
{18} Here, appellant acknowledges that Dr. Eddy‘s denial of his requests for a consultation with a corneal specialist forms the basis of his suit against DRC. Appellant‘s
{19} Appellant argues, however, that case law from this court holds that claims against DRC alleging negligent medical care, diagnosis, or treatment of an inmate are construed as ordinary negligence claims absent either an allegation in the complaint that DRC is a “hospital” for purposes of
{20} In Franks I, Jerry Franks, an inmate who suffered from obvious physical limitations, fell down a flight of stairs after a DRC nurse refused to provide him with a first floor restriction. The Court of Claims construed Franks’ claim against DRC as a medical claim and granted DRC‘s motion for judgment on the pleadings because appellant failed to submit a
{21} On remand, the Court of Claims granted summary judgment for DRC because Franks failed to produce the testimony of a medical expert, by affidavit or otherwise, to support his medical claim. In Franks v. Ohio Dept. of Rehab. & Corr., 10th
{22} In Foster, inmate Foster claimed that he sustained an injury when he fell from his bunk after DRC employees forced him into a top bunk even though he had informed them that sleeping on that bunk was contrary to medical advice given him for his various health problems. In connection with its motion for summary judgment, DRC produced evidence that DRC‘s employee, Dr. Asche, had previously issued Foster a temporary lower bunk restriction but refused to reissue the restriction on its expiration. The Court of Claims construed Foster‘s claim as a medical claim and granted summary judgment to DRC because Foster failed to produce the affidavit of a medical expert in support of his claim. This court determined that Foster‘s complaint stated a claim for relief in ordinary negligence, rather than medical malpractice, and reversed the judgment of the Court of Claims. In so holding, this court reasoned as follows:
DRC failed to provide evidence, through affidavit or otherwise, that Dr. Asche had provided appellant with medical diagnosis, care, or treatment. Rather, ODRC‘s affidavit established only that Dr. Asche had (1) issued a short-term lower-bunk restriction that had lapsed, (2) had re-evaluated appellant at the time the restriction expired, and (3) had refused to renew the lower-bunk restriction. Where a medical examination is conducted as a precondition to obtaining a benefit or to obtain information concerning a person‘s eligibility for a benefit, that examination is distinguishable from one occurring in the diagnosis, care or treatment of a person, as requisite to a medical claim.
{23} In our view, this court‘s prior decisions in Franks I, Franks II, and Foster stand for the proposition that an inmate‘s claim against DRC based on the negligent acts or omissions of DRC‘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. Here, appellant‘s claim against DRC is a “medical claim” because, unlike the cases cited by appellant, the pleadings and the evidence establish that appellant‘s injuries arise out of the alleged negligence of Dr. Eddy in the medical diagnosis, care, or treatment of appellant‘s corneal opacity/scarring. Wilson. Because a “physician” is one of the medical providers identified in
{24} “To succeed on a medical malpractice claim, the plaintiff must establish: (1) the standard of care within the medical community; (2) the defendant‘s breach of that standard of care; and (3) proximate cause between the breach and the plaintiff‘s injuries.” Gordon at ¶ 66, citing Adams v. Kurz, 10th Dist. No. 09AP-1081, 2010-Ohio-2776, ¶ 11. In Bruni v. Tatsumi, 46 Ohio St.2d 127, 129-30 (1976), the Supreme Court of Ohio articulated the following legal standard Ohio courts are to apply in evaluating whether a physician or surgeon has breached the applicable standard of care:
In evaluating the conduct of a physician and surgeon charged with malpractice, the test is whether the physician, in the performance of his service, either did some particular thing or things that physicians and surgeons, in that medical community, of ordinary skill, care and diligence would not have done under the same or similar circumstances, or failed or omitted to do some particular thing or things which physicians and surgeons of ordinary skill, care and diligence would have done under the same or similar circumstances. He is required to exercise the average degree of skill, care and diligence exercised by members of the same medical specialty community in similar situations.
{25} “The Bruni standard applies to an inmate‘s claim for medical malpractice.” Gordon at ¶ 67, citing Sloan v. Ohio Dept. of Rehab. & Corr., 119 Ohio App.3d 331, 334 (10th Dist.1997), citing Buerger. In Gordon, this court stated that in a medical malpractice case, a plaintiff bears the burden of presenting sufficient evidence to allow the factfinder to conclude that the defendant breached the standard of care. Id at ¶ 77. This court also “recognized that ‘whether the defendant has employed the requisite care must be determined from the testimony of experts’ and that a medical malpractice trial may produce a ‘battle of the experts.’ ” Lips v. Univ. of Cincinnati College of Medicine, 10th Dist. No. 12AP-374, 2013-Ohio-1205, ¶ 51, quoting Gordon at ¶ 77. Similarly, “[u]nless a
{26} There is no dispute that appellant failed to either identify an expert witness who would give testimony in support of his medical claim or provide DRC with an expert report as required by the Court of Claims’ pre-trial orders and
[B]ased upon my training, education, and experience, I made a medically appropriate determination that any depression in [appellant‘s] visual acuity was unrelated to his corneal scarring because it had remained unchanged for several years. Accordingly, I determined that it was not medically necessary for [appellant] to see a corneal specialist.
(Aff. at 3.)
{27} Appellant contends that the Court of Claims should have disregarded Dr. Eddy‘s affidavit inasmuch as his testimony is based on his review of documents in appellant‘s medical file and not his own personal knowledge. Dr. Eddy‘s affidavit establishes that as DRC‘s Medical Director, he has access to appellant‘s inmate medical file and that he personally reviewed appellant‘s medical records in reaching his conclusion that a consultation with a corneal specialist was not medically necessary in appellant‘s case. Thus, Dr. Eddy had personal knowledge of the facts underlying his testimony. Moreover, Dr. Eddy‘s affidavit provides sufficient information to establish his expertise as a medical doctor. Under Ohio law, any doctor licensed to practice medicine is competent to testify on medical issues. Schooley at ¶ 19.
{29} For the foregoing reasons, appellant‘s first assignment of error is overruled.
B. Second Assignment of Error
{30} In appellant‘s second assignment of error, appellant contends that the Court of Claims erred when it granted summary judgment to DRC because the averments in Dr. Eddy‘s affidavit conflict with admissions made by DRC in its answer to appellant‘s amended complaint, as well as an admission made by DRC in responding to his request for admissions. DRC contends that appellant waived the arguments made in his second assignment of error by failing to raise it in opposition to DRC‘s motion for summary judgment. We agree.
{31} “A court of appeals must resolve an appeal ‘on its merits on the assignments of error set forth in the briefs under App.R. 16.’ ” State v. Armor, 10th Dist. No. 16AP-532, 2017-Ohio-396, ¶ 26, quoting
{33} For the foregoing reasons, appellant‘s second assignment of error is overruled. Having overruled appellant‘s two assignments of error, we hold that the Court of Claims did not err when it granted summary judgment in favor of DRC.
V. CONCLUSION
{34} Having overruled appellant‘s two assignments of error, we affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.