[Cite as Avery v. Dept. of Rehab. & Corr., 2017-Ohio-7376.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Edward B. Avery, Sr., :
Plaintiff-Appellant, :
No. 16AP-856
v. : (Ct. of Cl. No. 2015-00830)
Ohio Department of Rehabilitation : (ACCELERATED CALENDAR)
and Correction,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on August 29, 2017
On brief: Edward Clark Corley, for appellant.
Argued: Edward Clark Corley.
On brief: Michael DeWine, Attorney General, and
Jeanna V. Jacobus, for appellee. Argued: Jeanna V.
Jacobus.
APPEAL from the Court of Claims of Ohio
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.
No. 16AP-856 2
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.
No. 16AP-856 3
According to Avery, he later reviewed his medical file and saw that he was allergic to
Bactrim, and that he had had the same allergic reaction to Bactrim a year earlier.
{¶ 7} Avery offered no further testimony or witnesses. However, he moved to
admit into evidence certain documents allegedly contained in his medical file as well as
several documents relating to a grievance he filed in connection with his medical
treatment. Because these documents were unauthenticated, the magistrate refused to
admit them into evidence. However, the documents were proffered and are part of the
record.
{¶ 8} Following the completion of Avery's testimony, appellee moved for
dismissal of Avery's claim pursuant to Civ.R. 41(B)(2). Appellee asserted Avery's medical
negligence claim had to be dismissed because Avery failed to present any expert testimony
to establish a breach of the standard of care or proximate causation. The magistrate
granted appellee's motion.
{¶ 9} Avery filed objections to the magistrate's decision. However, Avery did not
file a transcript of the proceedings before the magistrate. Therefore, the trial court, in
ruling on Avery's objections, was unable to review the basis for the magistrate's factual
findings. Accordingly, the trial court accepted the magistrate's factual findings and
limited its review to the magistrate's legal conclusions. The trial court agreed with the
magistrate that Avery's failure to present expert testimony on the issues of breach of the
standard of care and proximate cause required dismissal of his medical negligence claim
pursuant to Civ.R. 41(B)(2). Therefore, the trial court overruled Avery's objection,
adopted the magistrate's decision, and dismissed Avery's case.
{¶ 10} Avery appeals, assigning the following errors:
I. The trial court erred in granting the defendant-appellee's
motion to dismiss pursuant to Civ.R. 41(B)(2), based upon a
finding that expert testimony was required on the element of
causation and to establish the standard of care.
II. The trial court erred in denying the admission of the
decision of the chief inspector of a grievance appeal, into
evidence.
No. 16AP-856 4
LEGAL ANALYSIS
{¶ 11} For ease of analysis, we begin with Avery's second assignment of error.
Avery argues that the trial court erred in refusing to admit into evidence the decision of
the chief inspector on Avery's appeal of his grievance. We disagree.
{¶ 12} Because Avery did not file the trial transcript prior to the trial court's
consideration of his objections to the magistrate's decision, the trial court could not
review whether Avery laid a proper foundation for the admission of this document at trial.
On appeal, Avery argues that the chief inspector's decision is self-authenticating under
Evid.R. 902(5) and that it falls within an exception to the hearsay rule. Again, we
disagree.
Evid.R. 902(5) provides as follows:
Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to the following:
(5) Official publications. Books, pamphlets, or other
publications purporting to be issued by public authority.
{¶ 13} The decision of the chief inspector on Avery's appeal of his grievance is not a
book, pamphlet, or other official publication. Therefore, Evid.R. 902(5) is inapplicable.
Accordingly, the trial court did not err when it rejected Avery's contention that the chief
inspector's decision is self-authenticating. For this reason, we overrule Avery's second
assignment of error.1
{¶ 14} In his first assignment of error, Avery contends that the trial court erred
when it dismissed his medical negligence claim pursuant to Civ.R. 41(B)(2) due to his
failure to provide expert medical testimony to establish a standard of care, a breach
thereof, and proximate causation. Again, we disagree.
{¶ 15} In order to prove medical negligence, Avery had to demonstrate by a
preponderance of the evidence that his injury was proximately caused by the medical
provider's failure to comply with the applicable standard of care. Carter v. Vivyan, 1oth
Dist. No. 11AP-1037, 2012-Ohio-3652, ¶ 16; Gordon v. Ohio State Univ., 10th Dist. No.
10AP-1058, 2011-Ohio-5057, ¶ 67. In medical negligence cases, "the general rule is that
1 Because the chief inspector's decision was not properly authenticated, it was not admissible. Therefore,
the hearsay issue is moot and we decline to address it.
No. 16AP-856 5
the plaintiff must prove causation through medical expert testimony in terms of
probability to establish the injury was, more likely than not, caused by the defendant's
negligence." Roberts v. Ohio Permanente Med. Group, 76 Ohio St.3d 483, 485 (1996).
{¶ 16} Avery argues that he did not need to present expert testimony to establish a
breach of the standard of care because it is within the common knowledge of an ordinary
lay person that a medical practitioner should not prescribe a medication to a patient when
the medical practitioner knows or should have known that the patient is allergic to the
medication. Avery relies on Culp v. Olukoga, 4th Dist. No. 12CA3470, 2013-Ohio-5211,
which cites a number of Ohio cases that have recognized a common-knowledge exception
where gross inattention during patient care or miscommunication with a patient is
involved. Even if we were to accept Avery's argument that expert testimony was
unnecessary in this case to establish a breach of the standard of care, he still needed to
prove proximate causation. Avery makes no attempt to argue that the symptoms
associated with an allergic reaction to Bactrim are within the ordinary knowledge of a lay
person. Rather, Avery argues he proved proximate causation by describing what he was
told by appellee's medical personnel and by a reference to the cause of his symptoms in
the decision of the chief inspector who reviewed the appeal of Avery's grievance. This
evidence does not qualify as expert medical evidence and is insufficient to prove
proximate causation.
{¶ 17} As previously noted, the chief inspector's decision was not properly
authenticated, and therefore, was not admitted into evidence. Therefore, Avery's reliance
on any statement contained therein is misplaced. Although Avery also testified about
what a nurse and a nurse practitioner told him regarding the cause of his symptoms, that
evidence does not qualify as expert testimony. The magistrate made no finding that the
nurse and/or nurse practitioner are familiar with the symptoms associated with an
allergic reaction to Bactrim or are otherwise qualified to express an opinion concerning
whether Avery's symptoms were proximately caused by the medication he was prescribed.
Evid.R. 702(B) (witness may testify as expert if witness is qualified by specialized
knowledge, skill, experience, training, or education regarding the subject matter of the
testimony). Nor were the statements Avery attributed to them expressed in terms of a
reasonable degree of medical certainty. Stinson v. England, 69 Ohio St.3d 451 (1994),
No. 16AP-856 6
paragraph one of the syllabus (expert opinion about causation is admissible only if
expressed in terms of probability or a reasonable degree of scientific certainty).
Therefore, even if Avery did not need expert testimony to prove a breach of the standard
of care, his failure to provide expert testimony to establish proximate causation required
the trial court to dismiss his medical negligence claim pursuant to Civ.R. 41(B)(2).
Accordingly, we overrule Avery's second assignment of error.
{¶ 18} Having overruled Avery's two assignments of error, we affirm the judgment
of the Court of Claims of Ohio.
Judgment affirmed.
BROWN and BRUNNER, JJ., concur.