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

{¶1} Plaintiff brought this action seeking to recover damages from d efendant arising out of an incident where force was used on him. Plaint iff also seeks damages from defendant arising from changes made to his prescription me dication 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 de fendant, 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. Plai ntiff stated that he suffers from grand mal seizures, complex partial seizures, and stare se izures. 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 Corre ctional Institution in January 2016 and began to have problems with sei zures shortly thereafter. Plaintiff stated that at some point defendant’s medical staff d iscontinued his seizure mediation. The decision to remove plaintiff from Topamax occur red 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 experie nce frequent seizures that JASON SKAGGS

Plaintiff

v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

Defendant Case No. 2019-00650JD

Magistrate Gary Peterson

DECISION OF THE MAGISTRATECase 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 rem oving him from his medications, he began to have frequent seizures. Plaintiff sta ted 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 emphasize d that he has no ability to control his actions when he is having a seizure. Plaintiff tes tified that on April 27, 2016, he suffered a seizure, and he was unable to respond to correcti ons officer’s orders, unable to control himself, became aggressive, and grabbed the a rm of the corrections officer. In a second incident on July 3, 2016, corrections off icer 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 Se xton by the right arm. The corrections officers grabbed plaintiff by the shoulders, pl aced 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. Plainti ff 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 plaint iff says were too tight. Plaintiff testified that his wrists were damaged by the handcuf fs. {¶5} Plaintiff testified that in October 2016, his diagnosis was con firmed and defendant prescribed Depakote and Keppra. Plaintiff believes h e should have been prescribed Topamax. Plaintiff acknowledged that he was never d enied seizure medication and was continually provided medications; however, p laintiff believes he should have never had Topamax and Keppra removed from his presc ription plan. Plaintiff also stated that Disability Rights Ohio became involv ed in his case and his conduct reports were amended to show that he was not breaking p rison rules but thatCase No. 2019-00650JD -3- DECISION

he was suffering from medical issues. Plaintiff added that he is currently on K eppra and Topamax. {¶6} Landon Khols, the health care administrator at the Allen-Oakwoo d Correctional Institution, testified that plaintiff is on the he althcare 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 bee n consistently provided with various combinations of seizure medications, including Div alproex (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]ivi l actions against the state permitted by sections 2743.01 to 2743.20 of the Revised Code sh all 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 part ies.” “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, quoti ng 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 seizu re. 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 stat ute of limitations bars any recovery arising out of the force that was used on him. {¶9} Defendant argues t hat plaintiff’s medica l negligenc e 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, d ental, 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 actio n 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 medi cal 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 la ter.’” 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 syll abus. “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 occur rence of a ‘cognizable event’ as the trigger for the commencement of the statute of li mitations.” 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 * * * w hich 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 h as 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 h er 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 mista ke to alter his medications. However, plaintiff filed this action on May 23, 2 019, well beyond the time limitation for bringing such actions. Even applying the two-ye ar statute of limitations in R.C. 2743.16(A), plaintiff’s claim would likewise be time-barre d. {¶12} However, even if plaintiff had timely filed his claim challengi ng the decision to adjust his seizure medication, plaintiff did not present any expert testimony to supportCase 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 prescr iption 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 determi ne 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 plaint iff 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 m alpractice, 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, ca re or diligence, would not have employed, and that plaintiff’s injury was the direct and p roximate 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 ca re 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 recognize d standards of care in the medical specialty community is fatal to the presentation of a p rima 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 wi tness testimony

to establish the standard of care or that a breach of that stan dard proximately caused him harm. Without expert testimony to establish the standard o f care, defendant’s breach of that standard, and proximate cause of any injuries, p laintiff 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 (in mate required produce an expert report addressing the standard of ca re, breach of that standard, and proximate cause of injuries to create a genuine i ssue 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 malpractic e must fail. {¶16} Based upon the foregoing, the magistrate recommends that judgme nt 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 Ma g istrate

Filed May 26, 2021 Sent to S.C. Reporter 7/14/21