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Rembert v. Dep't of Rehabilitation and Correction9/6/2005
Judge J. Craig Wright
MAGISTRATE DECISION
{ } Plaintiff brought this action against defendant, Department of Rehabilitation and Correction (DRC), alleging medical malpractice and retaliation. The issues of liability and damages were bifurcated and the case proceeded to trial on the issues of liability and whether Dr. Albert Loescher is entitled to civil immunity pursuant to R.C. 2743.02(F) and 9.86.
{ } At all times relevant to this action, plaintiff was an inmate in the custody and control of defendant pursuant to R.C. 5120.16. In his complaint, plaintiff alleges that the medical treatment he received while at Richland Correctional Institution (RiCI), was below the applicable standard of care. Plaintiff claims he suffered personal injury as a result of Dr. Loescher's practice of over-prescribing the drug Cardizem, as treatment for his high blood pressure. Plaintiff also alleges that the medication was intentionally over-prescribed by Dr. Loescher in retaliation for plaintiff's filing of grievances against defendant's employees.
{ } Plaintiff was transferred from Chillicothe Correctional Institution (CCI) to RiCI in December 2000. Plaintiff testified that while he was at CCI, he filed a grievance in June 2000, against several corrections officers. Soon after the grievance was filed, he was diagnosed with hypertension and prescribed medication to control his blood pressure. Plaintiff testified that he was initially prescribed 100mg of Prinivil; however, the medication was changed to Cardizem and the dosage increased to 240mg. According to plaintiff, the change in the prescription occurred soon after he had filed another grievance against defendant's employees regarding an unprovoked attack upon him in October 2000.
{ } Plaintiff testified that after he was transferred to RiCI, Dr. Loescher increased the dosage of Cardizem to 300mg without performing an examination. Plaintiff alleges that Dr. Loescher increased his medication to an unhealthy level in retaliation for plaintiff's prior acts of filing grievances. Plaintiff testified that when he took the Cardizem "it was like my life leaving my body." Plaintiff claimed that on March 11, 2001, after taking his medication he slipped into a coma that lasted five hours.
{ } To the extent that plaintiff alleges that defendant over-prescribed medication in retaliation for plaintiff's filing grievances against the state, his claims are without merit. Indeed, claims of retaliation by prison officials are to be treated as actions for alleged violations of constitutional rights under Section 1983, Title 42, U.S.Code. Deavors v. Ohio Dept. of Rehab. & Corr. (May 20, 1999), Franklin App. No. 98AP-1105. Clearly, claims against the state under Section 1983, Title 42, U.S.Code may not be brought in the Court of Claims because the state is not a "person" within the meaning of Section 1983. See, e.g., Jett v. Dallas Indep. School Dist. (1989), 491 U.S. 701; Burkey v. Southern Ohio Correctional Facility (1988), 38 Ohio App.3d 170; White v. Chillicothe Correctional Institution (Dec. 29, 1992), Tenth Dist. No. 92AP-1230.
{ } To the extent that plaintiff alleges medical negligence, the burden of proof in such a case was established by the Supreme Court of Ohio in Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, at paragraph one of the syllabus, which states that " * in order to establish medical malpractice, it must be shown by a preponderance of the evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure o
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