[Cite as Skaggs v. Ohio Dept. of Rehab. & Corr., 2021-Ohio-2405.]

{¶1} Plaintiff brought this action seeking to recover damages from defendant 

arising out of an incident where force was used on him. Plaintiff also seeks damages 

from defendant arising from changes made to his prescription medication regimen. The 

case proceeded to trial on the issues of liability and damages.

{¶2} At trial, plaintiff, an inmate in the custody and control of defendant, testified 

that prior to entering prison in 2008, he was placed on seizure medication in 2003 and 

has continued to take seizure medication since that time. Plaintiff stated that he suffers 

from grand mal seizures, complex partial seizures, and stare seizures. Plaintiff 

explained that when he has a seizure, he often loses control of his bodily movements 

and that he is unable to recall events that occurred while was suffering from his seizure. 

Plaintiff stated that with the aid of his medications, Topamax and Keppra, his seizures 

have been controlled. 

{¶3} Plaintiff explained that he was transferred to the London Correctional 

Institution in January 2016 and began to have problems with seizures shortly thereafter. 

Plaintiff stated that at some point defendant’s medical staff discontinued his seizure 

mediation. The decision to remove plaintiff from Topamax occurred on February 5, 

2016, and the decision to remove plaintiff from Keppra occurred on February 9, 2016. 

Plaintiff’s Exhibit 1. Plaintiff was gradually weened off both mediations over the next 

couple of months. Plaintiff testified that he began to experience frequent seizures that 

JASON SKAGGS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF 

REHABILITATION AND CORRECTION 

 Defendant 

Case No. 2019-00650JD 

Magistrate Gary Peterson 

DECISION OF THE MAGISTRATE 
Case No. 2019-00650JD -2- DECISION 

were witnessed by staff and other prison employees. Plaintiff believes that the 

medications should never have been discontinued and that by removing him from his 

medications, he began to have frequent seizures. Plaintiff stated that it appeared to him 

that defendant did not believe that his seizures were real. 

{¶4} Plaintiff described several incidents where he received conduct reports for 

his actions while he was having a seizure. Plaintiff emphasized that he has no ability to 

control his actions when he is having a seizure. Plaintiff testified that on April 27, 2016, 

he suffered a seizure, and he was unable to respond to corrections officer’s orders, 

unable to control himself, became aggressive, and grabbed the arm of the corrections 

officer. In a second incident on July 3, 2016, corrections officer Baker was escorting 

plaintiff when plaintiff became “dead weight” and was taken to the floor. In a third 

incident on July 28, 2016, corrections officers Sexton and Mets found plaintiff lying 

down and shaking. At some point plaintiff attempted to grab Sexton by the right arm. 

The corrections officers grabbed plaintiff by the shoulders, placed him on the wall, 

attempted to place handcuffs on him, and ordered him to comply. When plaintiff failed 

to comply, corrections officers deployed pepper spray. Plaintiff continued to become 

more aggressive until officers gained control of him. At some point plaintiff was placed 

in the hole (restrictive housing) with handcuffs on that plaintiff says were too tight. 

Plaintiff testified that his wrists were damaged by the handcuffs. 

{¶5} Plaintiff testified that in October 2016, his diagnosis was confirmed and 

defendant prescribed Depakote and Keppra. Plaintiff believes he should have been 

prescribed Topamax. Plaintiff acknowledged that he was never denied seizure 

medication and was continually provided medications; however, plaintiff believes he 

should have never had Topamax and Keppra removed from his prescription plan. 

Plaintiff also stated that Disability Rights Ohio became involved in his case and his 

conduct reports were amended to show that he was not breaking prison rules but that 
Case No. 2019-00650JD -3- DECISION 

he was suffering from medical issues. Plaintiff added that he is currently on Keppra and 

Topamax. 

{¶6} Landon Khols, the health care administrator at the Allen-Oakwood 

Correctional Institution, testified that plaintiff is on the healthcare load for defendant. 

Khols examined a list of prescription mediations that plaintiff has been prescribed since 

2017 and noted that dating back to March 2017 plaintiff has been consistently provided 

with various combinations of seizure medications, including Divalproex (Depakote), 

Levetiracetam (Keppra), and Carbamazepine. No other witnesses testified. 

{¶7} Defendant argues that the statute of limitations bars plaintiff’s claims. 

R.C. 2743.16(A) provides, in pertinent part as follows: “[C]ivil actions against the state 

permitted by sections 2743.01 to 2743.20 of the Revised Code shall be commenced no 

later than two years after the date of accrual of the cause of action or within any shorter 

period that is applicable to similar suits between private parties.” “Generally, a cause of 

action accrues at the time the wrongful action is committed.” McDougald v. Ohio Dept. 

of Rehab. & Corr., 10th Dist. Franklin No. 20AP-218, 2020-Ohio-6697, ¶ 8, quoting

Union Savs. Bank v. Lawyers Title Ins. Co., 10th Dist. No. 10AP-226, 2010-Ohio-6396, 

¶ 25. 

{¶8} Plaintiff claims injuries arising from at least one of the 2016-incidents, in 

which force was used on him while he was suffering from a seizure. Plaintiff stated that 

his wrists were damaged because the handcuffs were too tight. However, plaintiff did 

not file this action until May 23, 2019. Accordingly, the statute of limitations bars any 

recovery arising out of the force that was used on him. 

{¶9} Defendant argues that plaintiff’s medical negligence claims are barred by 

the one-year statute of limitations for such claims, R.C. 2305.113(A) (“Except as 

otherwise provided in this section, an action upon a medical, dental, optometric, or 

chiropractic claim shall be commenced within one year after the cause of action 

accrued.”). 
Case No. 2019-00650JD -4- DECISION 

{¶10} “A statute of limitations begins to run when the cause of action accrues.” 

Bugh v. Ohio Dept. of Rehab. & Corr., 2019-Ohio-112, 128 N.E.3d 906, ¶ 16 (10th 

Dist.), citing R.C. 2305.113(A). “A cause of action for a medical malpractice claim 

accrues ‘(a) when the patient discovers or, in the exercise of reasonable care and 

diligence should have discovered, the resulting injury, or (b) when the physician-patient 

relationship for that condition terminates, whichever occurs later.’” Baker v. Scheetz, 

10th Dist. Franklin No. 18AP-655, 2019-Ohio-685, ¶ 7, quoting Frysinger v. Leech, 32 

Ohio St.3d 38, 512 N.E.2d 337 (1987), paragraph one of the syllabus. “In determining 

when a patient discovers, or in the exercise of reasonable care and diligence should 

have discovered, the resulting injury, courts look to the occurrence of a ‘cognizable 

event’ as the trigger for the commencement of the statute of limitations.” George v. 

Univ. of Toledo Med. Ctr., 10th Dist. Franklin No. 17AP-559, 2018-Ohio-719, ¶ 13. “A 

‘cognizable event’ is defined as ‘some noteworthy event * * * which does or should alert 

a reasonable person-patient that an improper medical procedure, treatment or diagnosis 

has taken place.’” Hans v. Ohio State Univ. Med. Ctr., 10th Dist. Franklin No. 07AP-10, 

2007-Ohio-3294, ¶ 10, quoting Allenius v. Thomas, 42 Ohio St.3d 131, 134, 538 N.E.2d 

93 (1989). “Thus, if a patient believes, because of harm she has suffered, that her 

treating medical professional has done something wrong, such a fact is sufficient to alert 

a plaintiff to the necessity for investigation and pursuit of her remedies.” Id. 

{¶11} Plaintiff challenges the February 2016 decision of the medical staff to 

adjust his seizure medication. Plaintiff believes that Topamax and Keppra should have 

always been his prescription medication and that it was a mistake to alter his 

medications. However, plaintiff filed this action on May 23, 2019, well beyond the time 

limitation for bringing such actions. Even applying the two-year statute of limitations in 

R.C. 2743.16(A), plaintiff’s claim would likewise be time-barred. 

{¶12} However, even if plaintiff had timely filed his claim challenging the decision 

to adjust his seizure medication, plaintiff did not present any expert testimony to support 
Case No. 2019-00650JD -5- DECISION 

such a claim. The negligence plaintiff describes arose in the course of medical 

diagnosis, care, or treatment, and is thus a claim for medical malpractice. Whether 

defendant was negligent in its management of plaintiff’s prescription regimen is uniquely 

within the purview of a medical expert and outside the general knowledge of a 

layperson. Medical skill and judgment are necessary to determine the proper course of 

treatment and the appropriate prescription medications. See Evans v. Ohio Dept. of 

Rehab. & Corr., 10th Dist. Franklin No. 16AP-767, 2018-Ohio-1035, ¶ 35. 

{¶13} “[A]n inmate is under no different burden than any other plaintiff in a 

medical malpractice claim.” Nicely v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 

09AP-187, 2009-Ohio-4386, ¶ 9. “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 plaintiff’s 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. “The Bruni standard applies to an inmate’s claim 

for medical malpractice.” Gordon v. Ohio State Univ., 10th Dist. Franklin No. 10AP1058, 2011-Ohio-5057, ¶ 67. 

{¶14} It is well-settled that, in order to prove a claim for medical malpractice, 

“[e]xpert 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.

“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 v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.19AP379, 2019-Ohio-4955, ¶ 10 (citations omitted). 
Case No. 2019-00650JD -6- DECISION 

{¶15} As stated previously, plaintiff failed to present any expert witness testimony 

to establish the standard of care or that a breach of that standard proximately caused 

him harm. Without expert testimony to establish the standard of care, defendant’s 

breach of that standard, and proximate cause of any injuries, plaintiff cannot prevail on 

his claim for medical malpractice. Gibson at ¶ 10; see Hernandez v. Ohio Dept. of 

Rehab. & Corr., 10th Dist. Franklin No. 17AP-37, 2017-Ohio-8646, ¶ 13-14 (inmate 

required produce an expert report addressing the standard of care, breach of that 

standard, and proximate cause of injuries to create a genuine issue of material fact); 

Sanchez v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 18AP-765, 2019-Ohio2534, ¶ 26-28 (inmate required to support his claim of medical malpractice with expert 

testimony). In short, plaintiff’s claim for medical malpractice must fail. 

{¶16} Based upon the foregoing, the magistrate recommends that judgment be 

entered in favor of defendant. 

{¶17} 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 party timely 

and specifically objects to that factual finding or legal conclusion within 14 days of the 

filing of the decision, as required by Civ.R. 53(D)(3)(b).

 

 GARY PETERSON 

Magistrate 

 

Filed May 26, 2021 

Sent to S.C. Reporter 7/14/21