[Cite as Hernandez v. Ohio Dept. of Rehab. & Corr., 2017-Ohio-8646.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


William Hernandez,                                    :

                Plaintiff-Appellant,                  :
                                                                             No. 17AP-37
v.                                                    :                (Ct. of Cl. No. 2016-00150)

Ohio Department of Rehabilitation                     :                (REGULAR CALENDAR)
and Correction,
                                                      :
                Defendant-Appellee.
                                                      :




                                          D E C I S I O N

                                  Rendered on November 21, 2017


                On brief: William Hernandez, pro se.

                On brief: Michael DeWine,                  Attorney    General,    and
                Jeanna V. Jacobus, for appellee.


                            APPEAL from the Court of Claims of Ohio

KLATT, J.

        {¶ 1} Plaintiff-appellant, William Hernandez, appeals from a judgment of the
Court of Claims of Ohio granting summary judgment to defendant-appellee, Ohio
Department of Rehabilitation and Correction ("ODRC").                   Because appellant did not
present any evidence qualifying as expert medical testimony to establish the standard of
care, breach, and proximate cause for his medical negligence claim, we affirm.
FACTS AND PROCEDURAL HISTORY
        {¶ 2} Hernandez, an inmate at the Grafton Correctional Institution ("GCI"), filed
a complaint for medical negligence against ODRC. In the complaint, Hernandez alleged
No. 17AP-37                                                                                 2

that he suffered injuries as a result of GCI's medical personnel failing to examine, detect,
and treat a MRSA infection. A case management conference was held, and the trial court
ordered Hernandez to furnish ODRC with the names of any expert witnesses and a copy
of their reports on or before July 25, 2016, and that no discovery would be allowed after
September 21, 2016, without leave of court.
       {¶ 3} On August 15, 2016, Hernandez filed a motion to compel discovery after
ODRC objected to providing Hernandez with a copy of his GCI medical records pursuant
to R.C. 5120.21(C). On that same day, Hernandez also filed a motion to extend discovery
timelines and a partial list of expert witnesses. A month later, ODRC filed a motion for
summary judgment arguing that Hernandez could not prove his claim of medical
negligence because he failed to produce expert testimony addressing the issues of
standard of care, breach, and proximate cause.
       {¶ 4} The trial court denied Hernandez's motion to compel on the basis that he
failed to follow the procedure required by R.C. 5120.21(C) to obtain his medical records
and that he failed to recite his efforts to resolve the discovery matter with defense counsel
as required by Civ.R. 37(E). The court then addressed ODRC's motion for summary
judgment. It concluded that there were no genuine issues of material fact and that ODRC
was entitled to judgment as a matter of law because Hernandez could not prevail on his
claim of medical negligence after failing to provide counsel for defense with the names of
any expert witnesses or a copy of their reports by the deadline established by the court.
       {¶ 5} Hernandez appeals, assigning the following errors:
              [I.] THE PROVISIONS OF O.R.C. §5120.21(C)(2) WHICH ACT TO
              PREVENT A PRO SE PRISONER PLAINTIFF FROM PRESENTING
              HIS OWN MEDICAL RECORDS AS EVIDENCE IN A CIVIL
              ACTION DEPRIVE THE PLAINTIFF OF ACCESS TO THE COURT
              AND ARE UNCONSTITUTIONAL AS VIOLATIVE OF THE FIRST
              AND FOURTEENTH AMENDMENTS.

              [II.] THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
              IN ITS ERRONEOUS FACTUAL FINDINGS THAT PLAINTIFF
              FAILED TO RECITE HIS EFFORTS TO SEEK COMPLIANCE BY
              THE DEFENDANT IN HIS MOTION TO COMPEL DISCOVERY, IN
              VIOLATION OF DUE PROCESS OF LAW.

              [III.] THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
              IN ITS ERRONEOUS FACTUAL FINDING THAT PLAINTIFF
No. 17AP-37                                                                             3

                FAILED TO PROVIDE A LIST OF EXPERT WITNESSES BY THE
                DEADLINE ESTABLISHED BY THE COURT, VIOLATING
                APPELLANT'S RIGHT TO DUE PROCESS OF LAW.

                [IV.] THE TRIAL COURT ERRED AS A MATTER OF LAW IN
                GRANTING SUMMARY JUDGMENT TO THE DEFENDANT,
                VIOLATING DUE PROCESS OF LAW.

LEGAL ANALYSIS
       {¶ 6} In his first assignment of error, Hernandez challenges the constitutionality
of R.C. 5120.21(C)(2). That section provides:
                A separate medical record of every inmate in an institution
                governed by the department shall be compiled, maintained,
                and kept apart from and independently of any other record
                pertaining to the inmate. Upon the signed written request of
                the inmate to whom the record pertains together with the
                written request of either a licensed attorney at law or a
                licensed physician designated by the inmate, the department
                shall make the inmate's medical record available to the
                designated attorney or physician. The record may be
                inspected or copied by the inmate's designated attorney or
                physician.

       {¶ 7} Hernandez argues that R.C. 5120.21(C)(2) restricts access to medical
records to those prisoners who can afford an attorney or doctor to co-sign the request. He
contends that this procedure allows ODRC to deprive indigent, pro se prisoners access to
evidence necessary to prove a medical negligence claim against ODRC and ultimately
deprives prisoners the opportunity to present a claim. According to Hernandez, R.C.
5120.21(C)(2) denies him access to the courts in violation of the First Amendment and
Equal Protection Clause of the Fourteenth Amendment.
       {¶ 8} Hernandez, however, did not raise this argument to the trial court in his
motion to compel or in his memorandum in opposition to ODRC's motion for summary
judgment. Arguments raised for the first time on appeal are improper and generally not
considered. Coleman v. Columbus State Community College, 10th Dist. No. 15AP-119,
2015-Ohio-4685, ¶ 14. In addition, the Court of Claims lacks subject-matter jurisdiction
over alleged violations of constitutional rights. Stainbrook v. Ohio Secy. of State, 10th
Dist. No. 16AP-314, 2017-Ohio-1526, ¶ 38. For these reasons, the first assignment of error
is overruled.
No. 17AP-37                                                                                  4

       {¶ 9} In the second assignment of error, Hernandez argues that the trial court
erred in finding that he failed to recite his efforts to seek compliance before filing his
motion to compel discovery. The trial court denied the motion to compel for two reasons:
(1) Hernandez's written request for his medical records was not accompanied by a written
request from an attorney or physician as required by R.C. 5120.21(C), and (2) Hernandez
did not provide a statement detailing his efforts to resolve the discovery matter with
defense counsel as required by Civ.R. 37. Hernandez does not dispute that the request for
his medical records was not accompanied by a written request from an attorney or
physician. Therefore, the trial court properly denied the motion to compel on that basis
alone. Because there is an independent basis to support the trial court's denial of his
motion to compel, Hernandez's second assignment of error is moot.
       {¶ 10} In the third assignment of error, Hernandez argues that the trial court
erroneously found that he had failed to provide a list of experts by the deadline
established by the court. We disagree. The trial court ordered Hernandez to name his
expert witnesses and provide a copy of their reports to ODRC by July 25, 2016.
Hernandez filed a motion to extend discovery timelines and a partial list of expert
witnesses "instanter" on August 15, 2016. These filings, however, were past the deadline
established by the trial court and, therefore, there was no error in the trial court's finding.
The third assignment of error is overruled.
       {¶ 11} In the fourth assignment of error, Hernandez argues that the trial court
erred as a matter of law in granting summary judgment to appellee. We disagree.
       {¶ 12} A trial court will grant summary judgment under Civ.R. 56 when the
moving party demonstrates that: (1) there is no genuine issue of material fact; (2) the
moving party is entitled to judgment as a matter of law; and (3) reasonable minds can
come to but one conclusion when viewing the evidence most strongly in favor of the
nonmoving party, and that conclusion is adverse to the nonmoving party. Hudson v.
Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc.,
116 Ohio St.3d 158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a
motion for summary judgment is de novo. Hudson at ¶ 29. This means that an appellate
court conducts an independent review, without deference to the trial court's
determination. Zurz v. 770 W. Broad AGA, LLC, 192 Ohio App.3d 521, 2011-Ohio-832,
No. 17AP-37                                                                                5

¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th
Dist.).
          {¶ 13} In order to recover for medical malpractice, a plaintiff must prove: (1) the
existence of a standard of care within the medical community; (2) the defendant's breach
of that standard; and (3) proximate cause between the medical evidence and the plaintiff's
injuries. Adams v. Kurz, 10th Dist. No. 09AP-1081, 2010-Ohio-2776, ¶ 11. A medical
malpractice claimant must provide proof of the recognized standard of care in the medical
community through expert testimony. Bruni v. Tatsumi, 46 Ohio St.2d 127, 131-32
(1976).
          {¶ 14} Here, ODRC argues that the trial court properly granted it summary
judgment because it showed that Hernandez cannot prove his claim of medical
negligence. In its motion for summary judgment, ODRC stated that it served Hernandez
with requests for admissions on August 3, 2016. The requests asked him to admit or to
deny (1) he did not have a doctor or any other expert who would testify at trial that anyone
at GCI was negligent in providing medical care and, (2) he did not send a copy of a report
from any expert witness to ODRC on or before July 25, 2016. ODRC contended that
Hernandez failed to respond to the request for admissions, and therefore, they are
deemed to be admitted pursuant to Civ.R. 36(A)(1). Based on the requests for admissions
and Hernandez's failure to produce an expert report addressing the standard of care,
breach of that standard and proximate cause, ODRC argued that Hernandez could not
prevail on his claim of medical malpractice and that it was entitled to summary judgment
as a matter of law.
          {¶ 15} Appellant disputed that he failed to respond to the requests for admissions.
He attached a copy of his alleged responses to his memorandum contra summary
judgment. Although he denied that he did not have an expert to testify on his behalf,
Hernandez admited that he did not send a copy of a report from an expert witness prior to
the July 25, 2016 deadline. Without expert testimony, Hernandez cannot prove his claim
for medical malpractice.
          {¶ 16} Hernandez's reason in arguing that the trial court erred in granting
summary judgment is that discovery was not complete and that the evidence needed to
No. 17AP-37                                                                               6

submit a list of expert witnesses and expert reports was in the control of ODRC and that
ODRC had failed to provide him with that discovery. We reject this argument.
      {¶ 17} As previously discussed, Hernandez failed to meet the requirements of R.C.
5120.21(C)(2) to obtain a copy of his medical records. Also, Civ.R. 56(F) provides the sole
remedy for a party who must respond to a motion for summary judgment before it has
completed adequate discovery. Mootispaw v. Mohr, 10th Dist. No. 15AP-885, 2016-Ohio-
1246, ¶ 10; Commons at Royal Landing, LLC v. Whitehall, 10th Dist. No. 15AP-240,
2016-Ohio-362, ¶ 8. Pursuant to Civ.R. 56(F), a party may request that the trial court
defer ruling on the motion for summary judgment pending the completion of discovery.
Mootispaw at ¶ 10; Commons at Royal Landing at ¶ 9. When a party fails to move for a
Civ.R. 56(F) continuance, a trial court may grant summary judgment to the moving party
even if discovery remains incomplete. Mootispaw at ¶ 10; Commons at Royal Landing at
¶ 11. Moreover, the party that fails to move for a Civ.R. 56(F) continuance does not
preserve his right to challenge the adequacy of discovery on appeal. Mootispaw at ¶ 10.
      {¶ 18} Here, Hernandez did not move for a continuance under Civ.R. 56(F) to
complete discovery.   Although there were pending motions for an extension of time to
extend discovery and to compel discovery, neither motion precluded the trial court from
ruling on the motion for summary judgment. See Moore v. Kroger Co., 10th Dist. No.
10AP-431, 2010-Ohio-5721, ¶ 23. In any event, the trial court denied both motions in the
judgment entry granting summary judgment to appellee. Consequently, the trial court
did not err in granting appellee summary judgment, even though Hernandez had not
obtained the discovery he sought.      Accordingly, the fourth assignment of error is
overruled.
      {¶ 19} For the foregoing reasons, Hernandez’s first, third, and fourth assignments
of error are overruled, the second assignment of error is moot, and we affirm the
judgment of the Court of Claims of Ohio.
                                                                      Judgment affirmed.

                          SADLER and BRUNNER, JJ., concur.
