[Cite as Hopkins v. Madison Corr. Inst., 2011-Ohio-1854.]

                                                        Court of Claims of Ohio
                                                                                   The Ohio Judicial Center
                                                                           65 South Front Street, Third Floor
                                                                                      Columbus, OH 43215
                                                                            614.387.9800 or 1.800.824.8263
                                                                                       www.cco.state.oh.us




MARK HOPKINS

       Plaintiff

       v.

MADISON CORRECTIONAL INSTITUTION

       Defendant
       Case No. 2009-04149

Judge Joseph T. Clark

DECISION




        {¶ 1} Plaintiff brought this action alleging negligence.1 The issues of liability and
damages were bifurcated and the case proceeded to trial on the issue of liability.
        {¶ 2} At all times relevant, plaintiff was an inmate in the custody and control of
the Department of Rehabilitation and Correction (DRC) pursuant to R.C. 5120.16.
Plaintiff testified that on September 22, 2006, he fell while attempting to alight from his
bunk and that, as a result, he sustained injuries to his right arm and shoulder. Plaintiff
was subsequently transported to The Ohio State University Medical Center (OSUMC),
where he underwent reparative shoulder surgery. After surgery, plaintiff spent a period
of time recovering at the Corrections Medical Center (CMC) in Columbus.
        {¶ 3} Plaintiff testified that during his stay at CMC, Dr. Valentine examined him
and prescribed a course of physical therapy intended to rehabilitate his shoulder,
including several exercises which involved the use of weights or a rod. According to
plaintiff, when he left CMC and returned to defendant, defendant refused to furnish the
therapy devices due to security concerns.                   Plaintiff stated that defendant’s medical
Case No. 2009-04149                                 -2-                                    ENTRY

professionals selected a different course of physical therapy than that which Dr.
Valentine had selected, and that the only devices involved in the exercises selected by
defendant were rubber “therapy bands.”
       {¶ 4} According to plaintiff, he performed the physical therapy exercises
selected by defendant’s medical professionals, but he claims that his inability to perform
the exercises selected by Dr. Valentine prevented his shoulder from healing properly
and regaining a full range of motion. Plaintiff stated that after being released from
defendant’s custody in 2008, he received additional physical therapy through the
Veterans Administration (VA), but that his shoulder did not improve and that he
continues to experience pain and limited motion in the shoulder.
       {¶ 5} In his complaint, plaintiff claims that defendant was negligent in its “failure
to provide prescribed medical care.” In order for plaintiff to prevail upon his claim of
negligence, he must prove by a preponderance of the evidence that defendant owed
him a duty, that defendant’s acts or omissions resulted in a breach of that duty, and that
the breach proximately caused his injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio
St.3d 79, 81, 2003-Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15
Ohio St.3d 75, 77. Ohio law imposes upon the state a duty of reasonable care and
protection of its inmates. McCoy v. Engle (1987), 42 Ohio App.3d 204, 207-208. The
state is not an insurer of inmates’ safety, however. Moore v. Ohio Dept. of Rehab. &
Corr. (1993), 89 Ohio App.3d 107, 112.
       {¶ 6} Karen S. Stanforth testified that she has served as defendant’s Health
Care Administrator for the past five years and that she is familiar with plaintiff’s
treatment.     According to Stanforth, Dr. Valentine is a consultant at CMC, not an
employee of DRC and, while he can make recommendations to defendant’s medical
department, he cannot prescribe treatment.                    Stanforth stated that Dr. Valentine’s
recommendations concerning plaintiff’s physical therapy were forwarded to defendant,

1
On July 6, 2009, the court dismissed plaintiff’s constitutional and civil rights claims.
Case No. 2009-04149                         -3-                                    ENTRY

but that defendant’s chief physician declined to prescribe any exercises involving
weights or a rod, and instead prescribed exercises that involved rubber therapy bands.
Stanforth testified that plaintiff was not permitted to keep the therapy bands in his cell
due to security concerns, but that he was scheduled to visit the infirmary every day to
use them as prescribed.
       {¶ 7} Defendant’s expert, Karl W. Kumler, M.D., is an orthopedic physician
licensed to practice in Ohio. Dr. Kumler testified by deposition that he examined plaintiff
in his office on November 17, 2009, and that he reviewed plaintiff’s medical records
from the DRC, OSUMC, the VA, and the Westside Orthopedic Clinic. According to Dr.
Kumler, plaintiff’s fall resulted in a dislocation and “four-part fracture” of the shoulder.
Dr. Kumler stated that plaintiff underwent surgery at OSUMC on October 6, 2009, at
which time a portion of the shoulder was replaced with a prosthesis.
       {¶ 8} According to Dr. Kumler, surgery of this type requires subsequent physical
therapy in order for the shoulder to regain function.          Dr. Kumler explained that
defendant’s medical professionals prescribed plaintiff a course of physical therapy that
included exercises with Thera-Bands, which are large rubber bands designed for
stretching by the patient. Dr. Kumler testified that the medical records show that plaintiff
progressed well in his physical therapy and achieved “an adequate range of motion * * *
fairly early on after the surgery.”
       {¶ 9} Dr. Kumler stated that when plaintiff sought treatment through the VA
several months after his release from custody, the range of motion in his shoulder had
decreased, and that although he received physical therapy through the VA, his shoulder
never regained an “adequate” range of motion. Dr. Kumler related that his examination
of plaintiff revealed that the shoulder then had a significantly limited range of motion,
and Kumler opined that it was a result of “proximal migration” of the shoulder. Dr.
Kumler stated that x-rays of the shoulder show that the rotator cuff had deteriorated,
and he explained that without a properly functioning rotator cuff, the ball at the top of the
Case No. 2009-04149                          -4-                                     ENTRY

arm bone is not held in place, and will migrate to the top of the shoulder joint and
thereby prevent the arm from being fully raised. Dr. Kumler testified that deterioration
and failure of the rotator cuff is a common risk associated with both the type of injury
that plaintiff suffered and the type of surgery that he underwent.
       {¶ 10} Dr. Kumler opined that the deterioration of plaintiff’s rotator cuff and the
resulting proximal migration of his shoulder were unrelated to any physical therapy
which plaintiff received or claims that he should have received.            According to Dr.
Kumler, the DRC medical records reflect that plaintiff had performed the course of
physical therapy prescribed for him by defendant’s medical professionals and that such
therapy was appropriate.
       {¶ 11} Upon review of the evidence presented at trial, the court finds that the only
physical therapy exercises actually prescribed for plaintiff were those prescribed by
defendant’s chief physician.     Inasmuch as plaintiff, Stanforth, and Dr. Kumler each
testified that plaintiff performed such exercises, the court finds that defendant fulfilled its
duty to provide plaintiff with the therapy prescribed.
       {¶ 12} To the extent that plaintiff claims that the course of physical therapy
selected by defendant’s medical professionals was not appropriate, such allegations
sound in medical malpractice. A claim of medical malpractice requires expert testimony
to establish: 1) the standard of care recognized by the medical community; 2) the
failure of defendant to meet that standard; and 3) a direct causal connection between
the alleged negligent act and the injury sustained. See Bruni v. Tatsumi (1976), 46
Ohio St.2d 127. However, plaintiff did not introduce expert testimony.
       {¶ 13} For the foregoing reasons, the court finds that plaintiff has failed to prove
his claim by a preponderance of the evidence. Accordingly, judgment shall be rendered
in favor of defendant.
                                             Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us




MARK HOPKINS

      Plaintiff

      v.

MADISON CORRECTIONAL INSTITUTION

      Defendant
      Case No. 2009-04149

Judge Joseph T. Clark

JUDGMENT ENTRY




      This case was tried to the court on the issue of liability.           The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of defendant. 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.



                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge

cc:
Brian M. Kneafsey, Jr.            Mark Hopkins
Assistant Attorney General        552 South Wheatland Avenue
150 East Gay Street, 18th Floor   Columbus, Ohio 43204
Columbus, Ohio 43215-3130

RCV/cmd
Filed March 23, 2011
To S.C. reporter April 12, 2011
