Edward B. Avery, Sr., Plaintiff-Appellant,
Ohio Department of Rehabilitation and Correction, Defendant-Appellee.
from the Court of Claims of Ohio (Ct. of Cl. No. 2015-00830)
Clark Corley, for appellant. Argued: Edward Clark Corley.
Michael DeWine, Attorney General, and Jeanna V. Jacobus, for
1} Plaintiff-appellant, Edward B. Avery, Sr.,
appeals from a judgment of the Court of Claims of Ohio
overruling Avery's objections and adopting the
magistrate's decision that dismissed Avery's
complaint pursuant to Civ.R. 41(B)(2). Because appellant
presented no evidence qualifying as expert medical testimony
to establish proximate causation for his medical negligence
claim, we affirm.
AND PROCEDURAL HISTORY
2} Avery, an inmate at the Marion Correctional
Institution ("MCI"), filed a complaint for medical
negligence against defendant-appellee, Ohio Department of
Rehabilitation and Correction, alleging that he suffered
injuries as a result of appellee's medical personnel
prescribing a medication to which he was allergic. The case
was referred to a magistrate and proceeded to trial. Avery
appeared at trial pro se.
3} Avery testified that on September 9, 2014, he
experienced lower abdominal pain and went to the infirmary at
MCI for diagnosis and treatment. Avery was examined by a
nurse who took a urine sample. Avery was diagnosed with a
urinary tract infection. Avery stated that he waited in the
hallway while the nurse consulted with a doctor outside of
his presence. The nurse returned with an unidentified
medication. The nurse instructed him to take the medication
once in the morning and once at night, and she advised him to
avoid caffeine. According to Avery, the nurse provided him no
further information about the medication.
4} Within the following few days, Avery experienced
redness in his eyes and a soar throat. He later also
experienced rashes and diarrhea and a continuation of the
lower abdominal pain that prompted his initial visit to the
infirmary. Avery testified that by September 17, 2014, he had
welts on his skin and his body hurt. Avery called the
infirmary and was advised to purchase an over-the-counter
medication in the commissary, and if that did not alleviate
his symptoms, he should submit a health services request
form. Avery submitted the form requesting further medical
5} Avery was seen again by a nurse who examined him
and reviewed his medical file. According to Avery, the nurse
told him that it appeared he was having an allergic reaction
to the medication that he had been prescribed. Avery further
testified that he was allergic to Bactrim and the nurse told
him that the medication he had been prescribed was equivalent
to Bactrim. Avery further stated that he was then seen by a
nurse practitioner who concurred with the nurse's
findings. Avery received a shot of Benadryl and was
6} Thereafter, Avery testified that his symptoms
began to dissipate, although the lower abdominal pain
continued to be significant and persistent for some time.
According to Avery, he later reviewed his medical file and
saw that he was allergic to ...