Schwind v. Ohio Dep't of Rehab. & Corr., 2020-00314JD

CourtCourt of Claims of Ohio
Writing for the CourtPATRICK E. SHEERAN Judge
Citation2022 Ohio 1597
Docket Number2020-00314JD
Decision Date09 March 2022




No. 2020-00314JD

Court of Claims of Ohio

March 9, 2022

Sent to S.C. Reporter 5/12/22

Gary Peterson Magistrate Judge



{¶1} On December 6, 2021, defendant filed a motion for summary judgment pursuant to Civ.R. 56(B). On January 12, 2022, and on February 7, 2022, plaintiff filed responses in opposition to defendant's motion for summary judgment. Defendant filed a reply on February 1, 2022. For the reasons stated below, defendant's motion shall be granted.

Standard of Review

{¶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.

Factual Background

{¶4} According to the amended complaint, plaintiff is an inmate in the custody and control of defendant at the Madison Correctional Institution. Amended complaint at ¶ 2. The amended complaint goes on to relate that because of an injury that occurred prior to plaintiff's incarceration, his shoulder periodically dislocates. Id. at ¶ 5. Plaintiff relates that he previously received treatment from a chiropractor who would put his shoulder back into place whenever it would dislocate. Id. at ¶ 6-7. According to plaintiff, defendant does not offer chiropractic services; rather, the treatment he receives consists of "pills that simply do not work." Id. at ¶ 8. Plaintiff adds that defendant refuses to x-ray his shoulder. Id. at ¶ 9. The amended complaint faults defendant for failing to offer chiropractic services


and failing to x-ray his injury. Plaintiff indicates that his pain is so significant that he often sleeps in a chair. Id. at ¶ 10-11.

{¶5} Plaintiff alleges that he also suffers from a herniated disc. Id. at ¶ 12. Plaintiff goes on to explain that the medical treatment he receives consists of "talking to him." Id. at ¶ 14. Plaintiff identifies the basis of his amended complaint as medical malpractice and alleges that the standard of care has been breached regarding both his shoulder and his herniated disc.[1]

{¶6} Defendant moves for summary judgment arguing that plaintiff cannot prevail on a claim for medical malpractice because he has not provided an expert report or identified an expert witness who will testify regarding any alleged breach of the applicable standard of care that proximately caused him harm.

Law and Analysis

{¶7} Plaintiffs claim against defendant arises out of medical diagnosis, care, or treatment of his injuries. To establish a cause of action for medical malpractice, the "plaintiff must demonstrate by the preponderance of the evidence that the injury complained of was caused by a practice that a physician of ordinary skill, care or diligence, would not have employed, and that plaintiffs injury was the direct and proximate result of such practice." Schmidt v. Univ. of Cincinnati Med. Ctr., 117 Ohio App.3d 427, 430, 690 N.E.2d 946 (10th Dist.1997), citing Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976), paragraph one of the syllabus. Additionally, expert testimony is required to establish the standard of care and to demonstrate the defendant's alleged failure to conform to that standard. Bruni at 130-31. Failure to establish the standard of care is fatal to a prima facie case of medical malpractice. Id. at 130; see also Foy v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin Nos. 16AP-723 and 16AP-724, 2017-Ohio-1065, ¶ 23


(an inmate's claim against the Department of Rehabilitation and Correction arising in the course of medical diagnosis, care, or treatment is a...

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