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

• Decision Date: 28 April 2011
• Docket Number: No. 10AP–770.,10AP–770.
• Citation: 958 N.E.2d 1253,2011 -Ohio- 2048,195 Ohio App.3d 114
• Parties: FRANKS, Appellant, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, Appellee.
• Court: Ohio Court of Appeals

195 Ohio App.3d 114

2011 -Ohio- 2048

958 N.E.2d 1253

FRANKS, Appellant,

v.OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, Appellee.

No. 10AP–770.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided April 28, 2011.

Swope and Swope, Reynoldsburg, and Richard F. Swope, for appellant.

Michael DeWine, Attorney General, and Amy S. Brown and Temeka M. Higgins, for appellee.

CONNOR, Judge.

[Ohio App.3d 116] {¶ 1} Plaintiff-appellant, Jerry Franks (“appellant”), appeals the decision of the Court of Claims of Ohio granting judgment on the pleadings in favor of defendant-appellee, the Ohio Department of Rehabilitation and Correction (“ODRC”). For the following reasons, we reverse.

{¶ 2} Appellant is an inmate at the London Correctional Institution (“LCI”) pursuant to R.C. 5120.16. Appellant alleges that he has a diagnosis of Crohn's disease, suffers from severe muscle spasms, and undergoes chemotherapy. According[Ohio App.3d 117] to appellant, these conditions make it difficult for him to climb stairs. On May 5, 2009, appellant was moved from a first-floor cell to a third-floor cell. At the time, he apparently made clear to prison staff that he had difficulties with stairs. On May 6, 2009, he visited the infirmary to secure a medical restriction that would require him to be housed in a cell on the first floor. He was examined by a nurse, who scheduled him to see a doctor on May 9, 2009. Before appellant was seen by a doctor, however, he fell while attempting to negotiate stairs.

{¶ 3} As a result, appellant filed a complaint against ODRC. He alleges that ODRC has a policy under which a nurse may issue temporary medical restrictions to an inmate before he can be seen by a doctor. He also alleges that his difficulty with stairs was obvious to any and all prison staff, and his medical conditions were well documented in his medical file. In appellant's complaint, he presents a claim alleging that ODRC had failed to accommodate his disability in violation of Title II of the Americans with Disabilities Act (“ADA”). He also presents allegations of negligence. The parties dispute whether the alleged negligence presents a medical claim, under R.C. 2305.113, or alternatively, whether it is a claim for common-law negligence.

{¶ 4} In response to appellant's complaint, ODRC filed a motion to dismiss under Civ.R. 12(B)(6). Appellant opposed the motion, which the trial court denied. As a result, ODRC filed an answer and then a motion for judgment on the pleadings pursuant to Civ.R. 12(C). Appellant opposed the motion, which the trial court granted. Appellant has timely appealed and presents the following assignment of error:

Assignment of Error No. 1:

The trial court erred in sustaining defendant-appellee's motion for judgment on the pleadings.

{¶ 5} Under Civ.R. 12(C), a party may file a motion for judgment on the pleadings “[a]fter the pleadings are closed but within such time as not to delay the trial.” When presented with such a motion, a court must construe all the material allegations of the complaint, in addition to any reasonable inferences to be drawn therefrom, as true and in favor of the nonmovant. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 165, 63 O.O.2d 262, 297 N.E.2d 113, citing 2A Moore's Federal Practice 2342, Paragraph 12.15; 5 Federal Practice and Procedure, Wright and Miller, Section 1368. A motion for judgment on the pleadings tests the allegations of the complaint and presents questions of law. Id. at 166, 63 O.O.2d 262, 297 N.E.2d 113, citing Conant v. Johnson (1964), 1 Ohio App.2d 133, 30 O.O.2d 157, 204 N.E.2d 100. Therefore, appellate review of a judgment granted on the pleadings is de novo. See Abrams v. Fuerst, 5th Dist. No. 10–CA–146, 2011-Ohio-1641, 2011 WL 1233297, ¶ 23.

[Ohio App.3d 118] {¶ 6} In the instant matter, the trial court reviewed appellant's complaint and issued three findings. First, it specifically held that appellant had asserted a medical claim because he had been examined by a nurse, who declined to issue a medical restriction. It then generally held the following: to the extent that common-law negligence had been alleged, dismissal was proper because of discretionary immunity; and to the extent that ADA violations had been alleged, dismissal was proper because appellant had failed to set forth sufficient allegations. Appellant challenges each of these findings in this appeal, which we will address in turn.

{¶ 7} Civ.R. 10(D)(2) requires a medical claim, as defined in R.C. 2305.113, to be accompanied by an affidavit of merit. Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 5. R.C. 2305.113(E)(3) defines a medical claim as follows:

[A]ny 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 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.

{¶ 8} In Estate of Stevic v. Bio–Medical Application of Ohio, Inc., 121 Ohio St.3d 488, 2009-Ohio-1525, 905 N.E.2d 635, the Supreme Court of Ohio considered a case presenting procedural circumstances similar to those presented herein. In that case, the trial court granted judgment on the pleadings in favor of a dialysis center, without explanation. Id. at ¶ 5. The Fifth District Court of Appeals reversed and remanded after finding that it was unclear whether the complaint alleged a medical claim under R.C. 2305.113. Id. at ¶ 6. Upon accepting discretionary jurisdiction, the Supreme Court of Ohio held that a medical claim must both (1) arise out of the medical diagnosis, care, or treatment and (2) be asserted against one of the statutorily enumerated medical providers. Id. at syllabus. More specifically, the court provided:

[B]ecause Stevic's complaint did not clearly indicate whether any of her claims were asserted against medical providers enumerated in R.C. 2305.113(E), the trial court's judgment on the pleadings in favor of Bio–Medical was premature. Remand is appropriate because further proceedings in the trial court are required to determine whether Stevic's complaint alleges a medical claim within the purview of R.C. 2305.113.

Id. at ¶ 20; see also Eastley v. Volkman, 4th Dist. No. 09CA3308, 2010-Ohio-4771, 2010 WL 3835666, ¶ 4 (“because the estate did not allege that [the defendant] qualified as one of the enumerated medical providers in R.C. 2305.113(E)(3), its [Ohio App.3d 119] ordinary negligence claim against her does not qualify as a ‘medical claim’ under that section”); see also Evans v. Hanger Prosthetics & Orthotics, Inc. (N.D.Ohio 2010), 735 F.Supp.2d 785, 791 (“While the claims Evans asserts against Underwood and Yanke relate to medical treatment, prosthetists are not one of the medical providers enumerated in the statute”). Therefore, to constitute a medical claim within the statutory definition, a plaintiff must allege proper content against a proper defendant.

{¶ 9} Our court has previously analyzed whether ODRC could be considered a “hospital” under the statutory definition set forth in former R.C. 2305.11(D)(1). See Johnson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 06AP–196, 2006-Ohio-6432, 2006 WL 3517998.¹ In Johnson, the trial court granted summary judgment in favor of ODRC after finding it could be considered a hospital under the statutory definition. Id. at ¶ 8. Upon review, our court held that Civ.R. 56 imposed the obligation upon ODRC, as the movant, to provide evidence demonstrating it was a hospital under the statute. Id. at ¶ 18. After finding that ODRC had failed to present any evidence on the issue, we reversed the summary judgment and remanded the matter for further proceedings. Id. at ¶ 18, 20.

{¶ 10} In the instant matter, the pleadings shed no light on whether ODRC is one of the medical providers enumerated in R.C. 2305.113(E). While the complaint makes reference to a nurse, ODRC is the only named defendant in this matter. Therefore, it is the only entity against which claims, medical or otherwise, have been asserted. Accordingly, because appellant's complaint does not allege that ODRC is a statutorily enumerated medical provider under R.C. 2305.113(E) in its relation to appellant, it was premature for the trial court to conclude that appellant has asserted a medical claim and grant judgment on such a claim. See Estate of Stevic, 121 Ohio St.3d 488, 2009-Ohio-1525, 905 N.E.2d 635, at ¶ 20. To this extent, the trial court erred.

{¶ 11} Aside from the issue of whether appellant has asserted a medical claim, it is clear that he has alleged negligence. ODRC argues that it is entitled to judgment on the basis of discretionary immunity. We now turn to this issue.

{¶ 12} Because appellant has alleged that ODRC was negligent, he was required to demonstrate the existence of a duty, a breach of that duty, and an injury proximately caused by the breach. Menifee v. Ohio Welding Prods., Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 472 N.E.2d 707. In regard to the custodial relationship between the state and its prisoners, the state owes a common-law duty of reasonable care and protection from unreasonable risks. [Ohio App.3d 120] McCoy v. Engle (1987), 42 Ohio App.3d 204, 207, 537 N.E.2d 665. Indeed, the relationship between a “jailer and [an] inmate does not expand or heighten the duty of ordinary reasonable care.” Woods v. Ohio Dept. of Rehab. & Corr. (1998), 130 Ohio App.3d 742, 745, 721 N.E.2d 143. “Reasonable care” is defined as the degree of caution and foresight that an ordinarily prudent person would employ in similar circumstances. Id. at 745, 721 N.E.2d 143.

{¶ 13} The extent of the duty...