to S.C. Reporter 8/27/19
DECISION OF THE MAGISTRATE
VAN SCHOYCK MAGISTRATE
Plaintiff, an inmate in the custody and control of defendant
at the Warren Correctional Institution (WCI), brought this
action alleging that defendant failed to render appropriate
diagnosis, care or treatment for a medical issue with his
wrist. The case proceeded to trial before the undersigned
At trial, plaintiff testified that for four years, medical
personnel at multiple prisons failed to properly diagnose and
treat a nonunion fracture in his wrist, as well as carpal
tunnel syndrome. Plaintiff recounted enduring extreme pain
during that time, as well as his frustrations in trying to
get medical care and treatment to relieve his symptoms, which
finally occurred when he underwent surgery. Plaintiff stated
that up until he had the surgery, prison authorities
repeatedly placed him in segregation and transferred him
between institutions because he kept arguing with medical
personnel about what he viewed as deficiencies in his care.
Tonie Taft, a nurse practitioner at WCI, answered several
questions on cross-examination about her interactions with
plaintiff beginning in 2017 after his transfer from a
privately-operated prison. Taft explained how she ordered an
orthopedic consultation for him, but administrators did not
allow the request at first and instead required that
plaintiff undergo EMG nerve testing. Taft also explained how
she prescribed certain medications for plaintiff. Taft stated
that after plaintiff underwent surgery on his wrist in
November 2018, she has no knowledge of him requesting any
further medical attention.
Upon review of the evidence presented, the magistrate finds
that plaintiffs claim is one for medical malpractice.
"In order to establish medical malpractice, 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; see also Carter v.
Vivyan, 10th Dist. Franklin No. 11AP-1037,
2012-Ohio-3652, ¶ 16. "The Bruni standard
applies to an inmate's claim for medical
malpractice." Gordon v. Ohio State Univ., 10th
Dist. Franklin No. 10AP-1058, 2011-Ohio-5057, ¶ 67.
"Expert testimony is required to establish the standard
of care and to demonstrate the defendant's alleged
failure to conform to that standard." Reeves v.
Healy, 192 Ohio App.3d 769, 950 N.E.2d 605,
2011-Ohio-1487, ¶ 38 (10th Dist.), citing Bruni
at 130-131. Given the absence of expert testimony in this
medical malpractice action, plaintiff has shown no right to
Based on the foregoing, the magistrate finds that plaintiff
failed to prove his claim of medical malpractice by a
preponderance of the evidence. Additionally, insofar as
plaintiff alleged in the complaint and argued at trial that
defendant acted with "deliberate indifference" to
serious medical needs in violation of his constitutional
rights, this court lacks jurisdiction over such claims.
White v. Unknown, 10th Dist. Franklin No. 09AP-1120,
2010-Ohio-3031, ¶ 7; Jackson v. Northeast
Pre-Release Ctr., 10th Dist. Franklin No. 09AP-457,
2010-Ohio-1022, ¶ 19. Accordingly, judgment is
recommended in favor of defendant on the medical malpractice
claim and it is recommended that the constitutional
"deliberate indifference" claim be dismissed
without prejudice for lack of subject matter jurisdiction.
A party may file written objections to the magistrate's
decision within 14 days of the filing of the decision,
whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any
party timely files objections, any other party may also file
objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the
court's adoption of any factual finding or legal
conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the ...