Ronald I. Quimby v. Dr. J.A. Smith

• Decision Date: 23 February 1990
• Docket Number: 90-LW-0488,9-88-26
• Parties: Ronald I. QUIMBY, Plaintiff-Appellant, v. Dr. J.A. SMITH, et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

Ronald I. QUIMBY, Plaintiff-Appellant, v. Dr. J.A. SMITH, et al Defendants-Appellees.

No. 9-88-26.

90-LW-0488 (3rd)

Court of Appeals of Ohio, Third District Marion

February 23, 1990

Civil Appeal from Common Pleas Court.

Ronald I. Quimby, in propria persona.

Robert Griffin, Assistant Attorney General, Columbus, for appellee Gary Williams, R.N.

Jacobson Maynard, Tuschman & Kalur Co., Amysue Taylor, Columbus, for appellee Jeffrey A. Smith, M.D.

OPINION

EDGAR L. MILLER, Judge.

This is an appeal by plaintiff, Ronald I. Quimby, from a summary judgment entered for defendants, Dr. Jeffery A. Smith and Gary Williams, by the Court of Common Pleas of Marion County.

Plaintiff, an inmate at Marion Correctional Institution filed an amended complaint naming as defendants Dr. Jeffery A. Smith, individually and in his official capacity as physician for the institution, and Gary Williams, individually and in his official capacity as a registered nurse employed at the institution.

Basically, the facts of the complaint are that the plaintiff injured his knee and suffered hearing loss by working in the furniture factory at the Marion Correctional Institution, was negligently treated therefor, and that the defendants are liable for failing to render to plaintiff the standard of care existing in the community and demanded by their respective professions.

Defendant, Gary Williams, filed a Motion for Judgment on the Pleadings. The trial court granted the motion. The Plaintiff filed a Motion for Reconsideration which was denied by the trial court.

Subsequently, Dr. Smith filed a Motion for Summary Judgment based on his personal affidavit.

Plaintiff filed his memorandum contra the motion for summary judgment, personal interrogatories, an Answer to Defendant's interrogatories with exhibits, and an affidavit asserting facts surrounding plaintiff's injury and treatment. The affidavit included the fact that the defendant, Dr. Smith, failed to take appropriate measures to ensure the safety of plaintiff due to his physical disabilities.

Dr. Smith's affidavit sets forth the facts in relation to the plaintiff's treatment and asserts that:

"7.Affiant has reviewed, evaluated and analyzed the care and treatment rendered to plaintiff during his incarceration at Marion Correctional Institution and, as a result of his review, evaluation, and analysis of the care and treatment rendered, it is his medical opinion to a reasonable degree of medical certainty based upon his education, training, and experience, that affiant exercised that degree of care and skill recognized by the standards in the medical community in rendering medical care to plaintiff."

On June 22, 1988, the trial court granted summary judgment in favor of the defendant.

In its Memorandum Decision, the trial court stated:

"The motion for summary judgment filed by the defendant, Jeffery A. Smith, on February 22, 1988 was first addressed by the Court on March 18, 1988 and the Court, by its Order of May 17, 1988, continued the hearing to June 13, 1988. The Court now considers the motion for the second time. The plaintiff filed an affidavit on June 2, 1988 in response to the defendant's motion for summary judgment.

"This Court finds that the holding in Hoffman v. Davidson 31 OS 3 60 is controlling and that the defendant's motion for summary judgment must be granted. The plaintiff must file opposing affidavits or some evidence to place in issue the facts alleged in the affidavit of the physician establishing the standard of care and his conformance thereto. The plaintiff has failed to do this.

"The Court finds that there is no issue of material fact and that the moving defendant, Jeffery A. Smith, is entitled to judgment as a matter of law."

Plaintiff appeals, naming defendants, Dr. Jeffery A. Smith and Gary Williams as appellees. Defendant Gary Williams filed a motion to dismiss the appeal to this court as being untimely. This court, however, overruled the motion stating that the Judgment Entry dismissing the plaintiff's amended complaint against Gary Williams did not dispose of the entire case, nor did the trial court determine, pursuant to Civ.R. 54(B), that there was no just reason for delay. Therefore, this court found the matter did not become final until the June 22, 1988 judgment entry.

The pleadings establish that defendant Gary Williams is an employee of the State of Ohio.

By the provisions of R.C. 2743.02(A)(2) and (F) an action against Williams was required to be first filed in the Court of Claims.

See e.g. Friedman v. Johnson (1985), 18 Ohio St.3d 85; Boggs v. State (1983), 8 Ohio St.3d 15; Moss v. Coleman (1982), 5 Ohio App.3d 177.

Thus the trial court properly dismissed plaintiff's complaint against defendant Williams.

Plaintiff appeals setting forth two assignments of error.

Assignment of error number one:

"TRIAL COURT ERRORED, BY FAILING TO RECOGNIZE PLAINTIFF HAS SUFFERED PERMANANT [SIC] INJURY, DUE TO THE DEFENDANT'S REFUSAL TO TAKE NECESSARY [SIC] MEDICAL PRECAUTIONS."

Assignment of error number two:

"TRIAL COURT ERRORED, BY FAILING TO REALIZE THAT PLAINTIFF IS INCARCERATED AND IS DENIED TO CONSULT WITH ANOTHER PHYSICIAN IN OPPOSITION TO THAT OF THE DEFENDANT'S WHILE AT MARION CORRECTIONAL INSTITUTION, AND THAT PLAINTIFF HAS PRESENTED CONTRODICTORY [SIC] MEDICAL CARE IN OPPOSITION, BY COMPETENT GOVERNMENT DR'S."

Civ.R. 56 provides as pertinent:

" * * *

"(C) Motion and Proceedings Thereon. The motion shall be served at least fourteen days before the time fixed for hearing. The adverse party prior to the day of hearing may serve and file opposing affidavits. Summary judgment shall be rendered forthwith if the pleading, depositions answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, 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 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 such evidence or stipulation and only...