[Cite as Burfitt v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-3863.]




LAWRENCE R. BURFITT                                    Case No. 2019-00686JD

        Plaintiff                                      Judge Patrick M. McGrath
                                                       Magistrate Scott Sheets
        v.
                                                       ENTRY GRANTING DEFENDANT’S
OHIO DEPARTMENT OF                                     MOTION FOR SUMMARY JUDGMENT
REHABILITATION AND CORRECTION

        Defendant
        {¶1} Defendant filed a motion for summary judgment on April 30, 2020 seeking
dismissal of plaintiff’s medical malpractice claim. Plaintiff filed a response on May 18,
2020.     For the following reasons, the court grants defendant’s motion for summary
judgment.
        {¶2} Civ.R. 56(C) states, in part, as follows:
        Summary judgment shall be rendered forthwith if the pleadings, depositions,
        answers to interrogatories, written admissions, affidavits, transcripts of evidence,
        and written stipulations of fact, if any, timely filed in the action, show that there is
        no genuine issue as to any material fact and that the moving party is entitled to
        judgment as a matter of law. No evidence or stipulation may be considered
        except as stated in this rule. A summary judgment shall not be rendered unless
        it appears from the evidence or stipulation, and only from the evidence or
        stipulation, that reasonable minds can come to but one conclusion and that
        conclusion is adverse to the party against whom the motion for summary
        judgment is made, that party being entitled to have the evidence or stipulation
        construed most strongly in the party’s favor.
See also Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v.
Wean United, Inc., 50 Ohio St.2d 317 (1977).
        {¶3} Further, as stated in Reeves v. Healy, 192 Ohio App.3d 769, 2011-Ohio-
1487, ¶ 38 (10th Dist.):
Case No. 2019-00686JD                        -2-                                   ENTRY


       To establish a cause of action for medical malpractice, the plaintiff “must
       show the existence of a standard of care within the medical community,
       breach of that standard of care by the defendant, and proximate cause
       between the medical negligence and the injury sustained.” Deer v. River
       Valley Health Sys., 4th Dist. No. 00CA20, 2001 Ohio 2662, quoting Taylor
       v. McCullough-Hyde Mem. Hosp. (1996), 116 Ohio App.3d 595, 599, 688
       N.E.2d 1078. Expert testimony is required to establish the standard of
       care and to demonstrate the defendant’s alleged failure to conform to that
       standard. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 130-31, 346 N.E.2d
       673. Failure to establish the standard of care is fatal to a prima facie case
       of medical malpractice. Id. at 130.
Likewise, competent expert testimony is also required to establish that the medical
negligence at issue was the direct and proximate cause of injury. Corwin v. St. Anthony
Med. Ctr., 80 Ohio App. 3d 836, 840 (10th Dist.1992). Medical experts must express
their “opinions in terms of a reasonable degree of medical probability.” Reinhardt v.
Univ. of Cincinnati Med. Ctr., 10th Dist. No. 94API04-603, 1994 Ohio App. LEXIS 5554,
at *15 (Dec. 13, 1994).
       {¶4} Finally, L.C.C.R. 8(E) provides “[a] party may not call an expert witness to
testify unless a written report has been procured from said witness” and that [a]n expert
will not be permitted to testify or provide opinions on issues not raised in the expert’s
report.” The rule also provides that where parties are unable to obtain written reports,
“the party must demonstrate that a good faith effort was made to obtain the report” and
must still identify the expert.
       {¶5} Defendant’s motion and the affidavit of counsel attached thereto establish
that plaintiff failed to disclose an expert and provide a report by the February 18, 2020
deadline previously set by the court. In his response, plaintiff does not dispute this fact.
Instead, he asserts he has been unable to retain an expert because he is incarcerated.
Case No. 2019-00686JD                         -3-                                    ENTRY


The court understands that plaintiff faces challenges litigating his case. Notwithstanding
these challenges, however, plaintiff’s claims require expert testimony which plaintiff
admittedly cannot provide.
         {¶6} The court finds there is no genuine issue of material fact regarding plaintiff’s
failure to retain an expert and provide a report. Lacking expert testimony, reasonable
minds could only conclude that plaintiff cannot sustain his burden regarding the
standard of care, breach of that standard of care, and proximate cause. As plaintiff
must present expert testimony to prevail on his medical malpractice claim and has
admittedly failed to procure an expert, defendant is entitled to judgment as a matter of
law.
         {¶7} For the foregoing reasons, the court finds that there are no genuine issues
of material fact and that defendant is entitled to judgment as a matter of law. The court
GRANTS defendant’s motion for summary judgment. Judgment is rendered in favor of
defendant. All previously scheduled events are VACATED. Court costs are assessed
against plaintiff. The clerk shall serve upon all parties notice of this judgment and its
date of entry upon the journal.




                                             PATRICK M. MCGRATH
                                             Judge


Filed June 17, 2020
Sent to S.C. Reporter 7/28/20
