Schwind v. Ohio Dept. of Rehab. & Corr.

[Cite as Schwind v. Ohio Dept. of Rehab. & Corr., 2022-Ohio-3995.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Jared Schwind, :
Plaintiff-Appellant, :
No. 22AP-230
v. : (Ct. of Cl. No. 2020-00314JD)
Ohio Department of Rehabilitation : (ACCELERATED CALENDAR)
and Correction,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on November 8, 2022
On brief: Jared Schwind, pro se.
On brief: Dave Yost, Attorney General, and Jeanna
Jacobus, for appellee.
APPEAL from the Court of Claims of Ohio
KLATT, J.
{¶ 1} Plaintiff-appellant, Jared Schwind, pro se, appeals from a judgment of the
Court of Claims of Ohio granting summary judgment to defendant-appellee, Ohio
Department of Rehabilitation and Correction ("ODRC"). Because appellant did not present
any evidence qualifying as expert medical testimony to establish the standard of care,
breach, and proximate cause for his medical malpractice claim, we affirm.
{¶ 2} On June 17, 2020, appellant, an inmate at the Madison Correctional
Institution ("MCI"), filed, pro se, an amended complaint for medical malpractice against
ODRC. In the amended complaint, appellant asserted that 17 years prior to his
incarceration, he suffered an injury which causes his shoulder to periodically dislocate.
No. 22AP-230 2
During that 17-year period, appellant received chiropractic treatment which involved
putting his shoulder back into place whenever it dislocated. Appellant also asserted that he
suffers from a herniated disc. Appellant alleged that the medical treatment he has received
at MCI for his conditions consists of "pills that simply do not work" and "talking to him."
(June 17, 2020 Am. Compl. at ¶ 8, ¶ 14.) Appellant indicated that his pain is so significant
that he often sleeps in a chair. Appellant alleged that MCI's failure to (1) timely X-ray his
shoulder, (2) provide chiropractic services, and (3) treat the herniated disc constitutes
medical malpractice.
{¶ 3} On October 12, 2020, the trial court ordered appellant to furnish ODRC with
the names of any expert witnesses and a copy of their reports on or before April 9, 2021.
Appellant did not comply with that order. He subsequently obtained counsel, who filed a
motion to continue the trial scheduled for November 2021 and extend discovery deadlines.
On July 23, 2021, the trial court granted appellant's motion, continued the trial to April
2022, and ordered the parties to submit a discovery plan including new deadlines for expert
witness disclosure and a discovery deadline. Pursuant to that order, the parties filed a
discovery plan setting appellant's new expert disclosure deadline as October 1, 2021, and
setting the discovery deadline as December 3, 2021. Appellant did not meet the October 1,
2021 expert disclosure deadline.
{¶ 4} On October 6, 2021, the trial court granted appellant's counsel's motion to
withdraw; thereafter, appellant proceeded pro se. On December 6, 2021, ODRC filed a
motion for summary judgment arguing that appellant could not prove his claim of medical
malpractice because he failed to produce expert testimony addressing the issues of the
applicable standard of care in the medical community, ODRC's breach of that standard of
care, and proximate cause. ODRC attached to its motion the affidavit of ODRC counsel
attesting that appellant had not provided the name of a physician or other expert witness
to testify on his behalf that ODRC was negligent in providing medical care to him. Counsel
further attested that appellant was served with requests for admissions on October 4, 2021,
which asked appellant to admit or deny that (1) he did not have a doctor or any other expert
who would testify at trial that anyone at ODRC was negligent in providing medical care and,
(2) he did not send a copy of a report from any expert witness to ODRC on or before the
October 1, 2021 deadline. Counsel further attested that in his response to the requests for
No. 22AP-230 3
admissions, appellant denied that he did not have a physician or other expert who would
testify at trial but admitted that he had not sent ODRC counsel the report of that expert
witness. Based on the requests for admissions and appellant's failure to produce an expert
report addressing the standard of care, breach of the standard of care, and proximate cause,
ODRC argued that appellant could not prevail on his medical malpractice claim and that it
was entitled to summary judgment as a matter of law.
{¶ 5} On December 10, 2021, appellant filed a motion for an extension of time to
file an expert witness report and subpoena documents. In his motion, appellant averred
that his expert (who appellant did not expressly identify in the motion) had been prevented
from obtaining the necessary documents to generate an expert report. Appellant further
related that his former counsel had failed to oversee the production of an expert report.
{¶ 6} On January 10, 2022, appellant filed a motion pursuant to Civ.R. 35
requesting that he be examined by his chiropractor, Dr. Stephen Aurand. Appellant
attached to the motion an unauthenticated letter from Dr. Aurand dated January 8, 2022.
In that letter, Dr. Aurand stated that appellant was a long-time patient and had been treated
for complaints similar to what appellant reported he was currently experiencing. He further
averred that absent a physical examination of appellant, he could not provide a treatment
recommendation for him. Dr. Aurand indicated that he would be willing to examine and
treat appellant at the prison at no cost. He further noted that transportation to his office
for a thorough examination and X-rays would allow him to better diagnose appellant's
condition.
{¶ 7} In a separate filing on January 10, 2022, appellant, apparently in conjunction
with his December 10, 2021 motion for an extension of time to subpoena documents, filed
a subpoena duces tecum ordering ODRC to produce X-rays and photographs of appellant
taken by MCI from March 1, 2020 to September 30, 2021, and to mail those documents to
Dr. Aurand's office. The record contains no evidence that appellant caused the subpoena
to be served on ODRC.
{¶ 8} On January 10, 2022, the trial court granted appellant's December 10, 2021
motion for an extension. The trial court permitted appellant until February 7, 2022 to
obtain an expert report and provide a copy of that report to counsel for ODRC and ordered
that appellant respond to ODRC's motion for summary judgment by that date.
No. 22AP-230 4
{¶ 9} On January 12, 2022, appellant filed a response to ODRC's motion for
summary judgment. Appellant referenced his January 10, 2022 motion for a physical
examination by Dr. Aurand, describing the motion as an "affidavit in support of this reply
* * * which indicates the factual disputes that the plaintiff believes exists, that [h]e can
sustain his burden of proving his medical malpractice claim and does have an expert
witness." (Jan. 12, 2022 Reply to Def.'s Mot. for Summ. Jgmt.)
{¶ 10} On February 7, 2022, appellant submitted a second response to ODRC's
motion for summary judgment. Appellant again maintained that he could sustain his
burden of proving medical malpractice through expert testimony. Appellant attached to
his response several unauthenticated documents, including electronic communications
between him and his former counsel, electronic communications between him and a person
identified as Joseph Clark, and informal prison grievances. Appellant also attached a form
captioned "Expert Witness Form." The form, which appears to have been completed by
Dr. Aurand on February 4, 2022, includes his name and address and lists under "Expert
Witness Qualifications" that he has been a chiropractor for 21 years and last treated
appellant in July 2017. The form also provides the following "Expert Witness Statement":
"Jared deal[s] w/thoracic spine issues that will influence the ribs, and triggers episodes of
a costochondritis. Once flared it is a very difficult issue to resolve. In the past he did well
under my treatment, and the issues seem to mostly resolve. It is hard to gauge his current
issues as he has not been seen in nearly 5 years." (Feb. 7, 2022 Reply to Def.'s Mot. for
Summ. Jgmt.)
{¶ 11} On March 9, 2022, the trial court entered summary judgment for ODRC. The
court determined that there was no genuine issue of material fact and that ODRC was
entitled to judgment as a matter of law because appellant could not prevail on his claim of
medical malpractice after failing to obtain an expert and provide an expert report regarding
the standard of care, breach of that standard of care, and proximate cause.
{¶ 12} Appellant appeals, assigning the following error:
The Court of Claims erred as a matter of law in granting
appellee's 56(C) motion for summary judgment by holding
that appellant failed to provide any evidence and failed to
obtain an expert and provide expert report before being able
to bring a medical malpractice claim against Ohio Department
of Rehabilitation and Correction.
No. 22AP-230 5
{¶ 13} In his single assignment of error, appellant argues that the trial court erred
as a matter of law in granting summary judgment to ODRC. More specifically, appellant
contends the trial court erred by finding that he failed to obtain an expert and provide an
expert report to support his medical malpractice claim. We disagree.
{¶ 14} Appellate review of summary judgment is de novo. Hudson v. Petrosurance,
Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29. This means that an appellate court conducts
an independent review, without deference to the trial court's determination. Zurz v. 770
W. Broad AGA, LLC, 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.).
{¶ 15} Civ.R. 56(C) provides 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 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.
{¶ 16} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75
Ohio St.3d 280, 293 (1996). The moving party, however, cannot discharge its initial burden
under this rule with a conclusory assertion that the nonmoving party has no evidence to
prove its case; the moving party must specifically point to evidence of a type listed in Civ.R.
56(C), affirmatively demonstrating that the nonmoving party has no evidence to support
the nonmoving party's claims. Id. Once the moving party discharges its initial burden,
summary judgment is appropriate if the nonmoving party does not respond, by affidavit or
as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists
for trial. Id.; Civ.R. 56(E).
No. 22AP-230 6
{¶ 17} " '[A]n inmate is under no different burden than any other plaintiff in a
medical malpractice claim.' " Gibson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 19AP-
379, 2019-Ohio-4955, ¶ 10, quoting Nicely v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
09AP-197, 2009-Ohio-4386, ¶ 9. In order to prevail on a claim of medical malpractice, a
plaintiff must prove: (1) the standard of care recognized by the medical community; (2) the
defendant's breach of that standard of care; and (3) a direct causal connection between the
breach and the injury sustained. Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976). The
appropriate standard of care must be proven by expert testimony. Id. at 130. That expert
testimony must explain what a medical professional of ordinary skill, care, and diligence in
the same medical specialty would do in similar circumstances. Id. The failure to provide
expert testimony establishing the recognized standards of care in the medical specialty
community is fatal to the presentation of a prima facie case of medical malpractice. Gibson
at ¶ 10, citing Grieser v. Janis, 10th Dist. No. 17AP-3, 2017-Ohio-8896, ¶ 20. By local rule
of the Court of Claims, a party is prohibited from calling an expert witness to testify unless
a written report has been procured from that witness. Sanchez v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 18AP-765, 2019-Ohio-2534, ¶ 27, citing L.C.C.R. (8)(E).
{¶ 18} Although appellant's arguments are difficult to decipher, he appears to
contend that he obtained an expert, Dr. Aurand, who provided the requisite expert medical
report vis-à-vis his January 8, 2022 letter and the February 4, 2022 expert witness form.
We first note that neither of these documents constitute proper Civ.R. 56(C) material, as
neither is in affidavit form. "An affidavit is a written declaration under oath." R.C. 2319.02;
Moss v. Bush, 104 Ohio St.3d 1443, 2004-Ohio-7119. Dr. Aurand did not swear to the
contents of the letter or the expert witness form under oath; he merely signed the
documents.
{¶ 19} Even if the documents could be construed as proper Civ.R. 56(C) evidence,
in neither document does Dr. Aurand express any opinion regarding the standard of
medical care recognized by the medical community in treating a shoulder dislocation and
herniated disc, ODRC's breach of that standard of care, and a direct causal connection
between ODRC's breach and appellant's injuries. In the January 8, 2022 letter, Dr. Aurand
simply avers that he had treated appellant for conditions similar to those about which
appellant now complains but could not provide a treatment plan for appellant without
No. 22AP-230 7
conducting a thorough physical examination. Dr. Aurand does not indicate that the
physical examination of appellant is for the purpose of providing an expert opinion about
the applicable standard of care, ODRC's breach of that standard of care, or proximate cause.
In the expert witness form, Dr. Aurand merely discusses past chiropractic treatment he
provided appellant and notes the difficulty in diagnosing appellant's current condition.
{¶ 20} We note that appellant attaches to his brief a March 12, 2021 letter from
Dr. Aurand (Ex. B). This letter was not attached to any document filed by appellant in the
trial court; as such, it may not be considered on appeal. "[A]n appellate court is bound to
the record before it and may not consider facts extraneous to that record. Fitzgerald v.
Ohio Bur. of Workers' Comp., 10th Dist. No. 03AP-1197, 2004-Ohio-3725, ¶ 11, citing
Paulin v. Midland Mut. Life Ins. Co., 37 Ohio St.2d 109, 112 (1974). Moreover, the letter
does not include any statement by Dr. Aurand regarding the applicable standard of care,
ODRC's breach of that standard of care, or proximate cause; rather, Dr. Aurand simply
offers to help appellant with treatment.
{¶ 21} In a related argument, appellant appears to contend that Dr. Aurand was
unable to provide an expert report because ODRC prevented him from viewing or otherwise
accessing appellant's medical records. Appellant characterizes ODRC's action as a violation
of his due process rights under Brady v. Maryland, 373 U.S. 83 (1963). Appellant states,
"under Brady, the state violates a defendant's right to due process if it withholds evidence
that is favorable to the defence [sic] and material to the defendant's guilt or punishment."
(Appellant's Brief at 2.) Brady addresses due process principles in the context of the
withholding of exculpatory evidence in a criminal prosecution. Appellant cites no case law
applying Brady in the framework of a civil case. As appellant's case does not involve a
criminal prosecution, his citation to Brady is unavailing.
{¶ 22} Moreover, "R.C. 5120.21(C)(2) places limitations on an inmate's access to
medical records." Nicely, 10th Dist. No. 09AP-187, 2009-Ohio-4386, ¶ 8. In Goings v.
Dept. of Rehab. & Corr., 10th Dist. No. 90AP-1041 (May 28, 1991), this court averred, "R.C.
5120.21(C)(2) states that the inmate's medical records shall be available for review on two
conditions. One is that the inmate make a signed written request for the records, and the
other is that his request be accompanied by a written request of an attorney or physician
designated by the inmate." Id. at * 7. Even construing appellant's January 10, 2022
No. 22AP-230 8
subpoena duces tecum filing as a signed written request for his medical records, such
request was not accompanied by a written request of an attorney or physician designated
by appellant. Appellant thus failed to meet the requirements of R.C. 5120.21(C)(2) to obtain
a copy of his medical records.
{¶ 23} In addition, "Civ.R. 56(F) provides the sole remedy for a party who must
respond to a motion for summary judgment before it has completed adequate discovery."
Hernandez v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 17AP-37, 2017-Ohio-8646, ¶ 17,
citing Mootispaw v. Mohr, 10th Dist. No. 15AP-885, 2016-Ohio-1246, ¶ 10. "Pursuant to
Civ.R. 56(F), a party may request that the trial court defer ruling on the motion for summary
judgment pending the completion of discovery." Id., citing Mootispaw at ¶ 10. "When a
party fails to move for a Civ.R. 56(F) continuance, a trial court may grant summary
judgment to the moving party even if discovery remains incomplete." Id. "Moreover, the
party that fails to move for a Civ.R. 56(F) continuance does not preserve his right to
challenge the adequacy of discovery on appeal." Id. Here, appellant did not move for a
continuance under Civ.R.(F) to complete discovery.
{¶ 24} In this case, ODRC supported its motion for summary judgment with
appropriate Civ.R. 56(C) evidence (ODRC counsel's attestations that appellant had not
provided the name of an expert witness who would testify on his behalf and the
authenticated attachments regarding appellant's admission that he had not sent counsel a
written report by an expert witness). Appellant failed to provide any appropriate Civ.R.
56(C) evidence to controvert ODRC's evidence and demonstrate a genuine issue of material
fact. Accordingly, there is no dispute that appellant failed to provide ODRC's counsel with
the name of an expert witness who would testify that ODRC breached the standard of care
and that such breach proximately caused appellant's injuries. Further, appellant did not
provide an expert report to ODRC's counsel by the deadlines imposed by the trial court.
{¶ 25} To prevail on his medical malpractice claim, appellant was required to
present proof, via expert testimony, on the standard of care recognized by the medical
community regarding treatment of a shoulder dislocation and herniated disc, ODRC's
breach of that standard of care, and a direct causal connection between ODRC's breach and
appellant's injuries. Appellant failed to do so. Thus, ODRC was entitled to judgment as a
matter of law, and the trial court did not err in so concluding.
No. 22AP-230 9
{¶ 26} For the foregoing reasons, appellant's assignment of error is overruled.
{¶ 27} As a final matter, we deny appellant's "Motion for Relief from Judgment"
filed in this court on August 10, 2022. Motions for relief from judgment are governed by
Civ.R. 60(B). In Martin v. Roeder, 75 Ohio St.3d 603 (1996), the Supreme Court of Ohio
held that that a motion pursuant to Civ.R. 60(B) is inapplicable to review a court's judgment
on appeal. Id. at 604.
{¶ 28} Having overruled appellant's sole assignment of error, we hereby affirm the
judgment of the Court of Claims of Ohio.
Motion for relief from judgment denied;
judgment affirmed.
DORRIAN and JAMISON, JJ., concur.