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Shie v. Ohio Department of Rehabilitation and Correction

Court of Claims of Ohio

April 10, 2017

DAVID SHIE Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant

          Sent to S.C. Reporter 6/23/17

          DECISION OF THE MAGISTRATE

          GARY PETERSON, Magistrate Judge

         {¶1} Plaintiff, an inmate in the custody and control of defendant, brought this action for negligence. Plaintiffs complaint lists four claims for negligence. Plaintiff claims that defendant refuses to provide him with food that will not harm his health; plaintiff claims that defendant refuses to allow him to purchase over-the-counter medications to treat his medical conditions; plaintiff claims that defendant refuses to allow him to purchase a wedge pillow to aid in his medical treatment; and plaintiff claims that defendant refuses to provide him with a bottom bunk restriction. The issues of liability and damages were bifurcated and the case proceeded to trial on the issue of liability.[1]

         {¶2} As an initial matter, subsequent to the trial, on February 28, 2017, plaintiff filed a document titled "motion to order that medical records be placed into evidence." In the motion, plaintiff requests that the court order defendant to submit three medical records as evidence. Plaintiff relates that the parties forgot to offer the documents as exhibits. However, at the trial, each party was offered the opportunity to submit exhibits as evidence. Neither party offered the medical records identified by plaintiff. Additionally, it is not defendant's duty to submit documents into evidence to support plaintiffs case. Plaintiffs motion is not well-taken and is DENIED.

         {¶3} At trial, plaintiff testified that he suffers from several health issues including gastroesophageal reflux disease (GERD), rhinitis, and a hiatal hernia. Plaintiff testified that due to his health conditions, on multiple occasions in April and May of 2015, defendant transported him to the Ohio State University Medical Center (OSUMC) for specialized treatment. Of relevance to this case, plaintiff stated that he was examined by an otolaryngologist, whose name he could not recall, and a gastroenterologist named Dr. Edward Levine.

         {¶4} Plaintiff testified that the physicians at OSUMC determined that plaintiff suffered from GERD, rhinitis, and a hiatal hernia. Plaintiff stated that the physicians at OSUMC recommended or prescribed, among other things, that he take Flonase and a proton-pump inhibitor, such as Nexium or Prilosec. Plaintiff provided that the physicians at OSUMC also recommended that he submit to a special diet tailored for patients with GERD and that he elevate his head at night while sleeping. According to plaintiff, when he returned to the Belmont Correctional Institution (BECI), defendant failed to provide him the medications, failed to provide the special diet, and failed to provide him a wedge pillow.

         {¶5} Regarding the special diet, plaintiff testified that the physicians at OSUMC recommended that he avoid foods that cause him reflux problems. Plaintiff testified that as a result, he attempts to avoid tomatoes, tomato sauce, cheese, high fat foods, spicy foods, onions, peppers, and greasy foods. Plaintiff stated that through his own independent research and through trial and error, he determined that the above-mentioned foods cause him reflux problems. Plaintiff added that it was also recommended to avoid chocolate, alcohol, caffeine, and acidic foods.

         {¶6} Plaintiff stated that he spoke with the BECI diet technician, whom he identified as Ms. Masters, to request a special diet. Plaintiff asserted that shortly thereafter, Michelle Tatman, defendant's dietary operations manager, informed him that there is no special diet for inmates with GERD and that each inmate is responsible for avoiding or eliminating foods that cause discomfort. (Joint Exhibit 1). Plaintiff added that Tatman recommended avoiding chocolate, peppermint, spearmint, alcohol, caffeinated beverages, and high fat foods. (Joint Exhibit 3). Plaintiff asserted that such statements by Tatman conflicted with statements made by the physicians at OSUMC.

         {¶7} According to plaintiff, many of the meals offered at BECI are prepared with tomatoes, tomato sauces, cheese, or what he referred to as creamy sauces. Plaintiff testified that such food items cause him reflux difficulties. Plaintiff added that several of the meals are spicy or greasy and are prepared with onions and peppers; plaintiff asserted that such food items likewise cause him reflux difficulties. Plaintiff offered a sample menu reflecting items served in the chow hall at BECI over a three-week period. (Plaintiffs Exhibit E). Plaintiff also created a chart wherein he noted the meals that cause him problems with his reflux disease. (Plaintiffs Exhibit F). Based on the sample menu and his chart of foods he wishes to avoid, plaintiff determined that out of the 31 meals listed on the sample menu, only seven are what he determined to be GERD compatible.

         {¶8} Plaintiff testified that the foods that he has determined to be incompatible with his GERD cause him discomfort and that by attempting to manage his condition and due to the lack of alternative foods available, he has lost 40 pounds over a period of several months. Plaintiff acknowledged however that he also purchased a wide range of food in the BECI commissary but asserted that he did so to determine what would be compatible with his GERD. Plaintiff added that during this time period, Masters performed several weekly weight checks that documented his weight loss.

         {¶9} With respect to his medications, plaintiff testified that the physicians at OSUMC recommended that he take Flonase and Prilosec or some other proton-pump inhibitor. Plaintiff stated that he attempted to purchase the items in the BECI commissary inasmuch as they are considered over-the-counter medications, but BECI did not offer them for sale. Plaintiff explained that he requested that he be allowed to purchase the items in the commissary but such a request was denied. However, plaintiff acknowledged that the commissary sells a generic proton-pump inhibitor. Plaintiff asserted that he used the generic proton-pump inhibitor that is available in the commissary but that he did not see any positive results. Regarding the Flonase, plaintiff testified that he was instructed to purchase other antihistamines that are available in the commissary.

         {¶10} Turning to his claim regarding elevating his head while sleeping, plaintiff testified that everyone agrees that one way to manage GERD is to elevate the head while sleeping. Plaintiff stated that as a result he purchased every pillow offered for sale in the commissary but that even while using the pillows, he could not achieve the desired result of elevating his head while sleeping. Plaintiff asserts that the pillows offered simply do not maintain their form. Plaintiff therefore requested that he be allowed to purchase a wedge pillow but such a request was denied.

         {¶11} Finally, concerning plaintiffs desire for a bottom bunk restriction, plaintiff testified that to get on to a top bunk he must jump onto the bed because the beds are not equipped with a ladder. According to plaintiff, such actions cause problems with his GERD and his hiatal hernia. Plaintiff conceded however that he is currently assigned to a bottom bunk. Plaintiff added that he fears a future injury if he is not granted a bottom bunk restriction.

         {¶12} Michelle Tatman, who is employed by defendant as a Dietary Operations Manager, testified that she received a degree in human nutrition from the Ohio State University and that she received her license as a dietitian in 2013. Tatman testified that her job duties include developing and approving menus for inmates at each of the institutions operated by defendant and managing the diet technicians at each institution by ensuring they follow policy. Tatman asserted that defendant has a policy governing therapeutic diets for inmates. (Defendant's Exhibit 1). Tatman explained that the policy was created by the dietary operations manager, a position she now ...


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