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Buerger v. Ohio Dept. of Rehab. & Corr.12/26/1989
REILLY, Judge.
This is an appeal from a judgment of the Court of Claims of Ohio dismissing plaintiff's complaint against defendant on the basis that plaintiff failed to present expert testimony at trial to show that the medical treatment renderesto him fell below the required standard of care. Plaintiff, pro se, asserts two assignments of error:
"I. It is error for a trial court to direct a verdict for the defendant where, in a malpractice case, the verdict is pre-determined and determined by failure of defendant to comply with due process standard of presenting witnesses named by defendant.
"II. It is error for a trial court to direct a verdict for the defendant where, in a malpractice case, the only medical evidence presented is so apparent as to be within the comprehension of laymen and required only common knowledge and experience to understand and judge it."
Plaintiff, an inmate at the Chillicothe Correctional Institute, filed a complaint against defendant alleging a "claim for damages for deliberate indifference to medical needs." The claim arose from the alleged mistreatment of plaintiff involving four events: (1) an alleged failure to adequately treat plaintiff's hypertension; (2) an alleged failure to adequately diagnose and treat plaintiff's back problem; (3) an alleged failure to adequately diagnose and 'treat plaintiff's hemorrhoids; and (4) an alleged failure to adequately diagnose and treat plaintiff's swollen elbow.
The case proceeded to trial and was submitted on plaintiff's testimony and defendant's stipulated medical records. During the trial, the court allowed plaintiff to amend his claim for alleged continued mistreatment from 1980 until the time of trial. The court requested defendant to provide updated medical records in conformance with the allowed amendment to plaintiff's claim. Aside from the medical records, however, there was no other medical evidence in the case. Plaintiff called no expert witness. Prior to trial, defendant filed a pretrial statement, pursuant to court rule, stating that defendant expected to call an official and the doctor who treated plaintiff. Nevertheless, at trial defendant did not present those witnesses, but instead, simply rested its case on the stipulated medical records.
Plaintiff, by his own testimony, asserted several instances of inadequate treatment. With respect to his hypertension, plaintiff claimed that on several occasions defendant's medical staff refused to take his blood pressure. Plaintiff also claimed that defendant prescribed the blood pressure medications, Inderal and Enduron, but then withheld the drugs from him when it was found that he was stockpiling the medicine by continually obtaining refills. By plaintiff's admission, at the time defendant restricted plaintiff's ability to obtain the drugs, plaintiff had accumulated a three-month supply of these drugs. Thus, for some time, plaintiff was without medicine, which he claims could have caused him to suffer a stroke. Eventually, he filed an institutionasgrievance which alleviated the problem. Plaintiff does not claim any resulting injury from the alleged error with his medication.
As to the degenerative disc in his spine, plaintiff testified that he reported back pain to defendant's doctor. Plaintiff was taken to Columbus for an x-ray, but refused to submit to the procedure. He requested a change in work and obtained a recommendation from a doctor that he should not lift objects weighing more than ten pounds. Plaintiff argued at trial that defendant was indifferent to his medical needs when non-medical personnel assigned him to sweep the streets with a broom. Eventually, plaint
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