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Avery v. Ohio Department of Rehabilitation and Correction

Court of Appeals of Ohio, Tenth District

August 29, 2017

Edward B. Avery, Sr., Plaintiff-Appellant,
v.
Ohio Department of Rehabilitation and Correction, Defendant-Appellee.

         APPEAL from the Court of Claims of Ohio (Ct. of Cl. No. 2015-00830)

         On brief:

          Edward Clark Corley, for appellant. Argued: Edward Clark Corley.

          Michael DeWine, Attorney General, and Jeanna V. Jacobus, for appellee.

         Argued:

          Jeanna V. Jacobus.

          DECISION

          KLATT, J.

         {¶ 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.

         FACTS 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 attention.

         {¶ 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 prescribed Prednisone.

         {¶ 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 ...


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