[Cite as Wallace v. Grafton Correctional Inst., 2011-Ohio-366.]

                                                         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




RONNIE LEE WALLACE

        Plaintiff

        v.

GRAFTON CORRECTIONAL INSTITUTION

        Defendant
        Case No. 2009-07024

Judge Clark B. Weaver Sr.
Magistrate Robert Van Schoyck

MAGISTRATE DECISION




        {¶ 1} Plaintiff brought this action for negligence, alleging that defendant failed to
timely provide him prescribed dental treatment. 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
defendant, Grafton Correctional Institution (GCI), pursuant to R.C. 5120.16. Plaintiff
testified that in July or August 2007, he received a dental examination from Dr. Smith
who was then the director of defendant’s dental clinic. During that examination, Dr.
Smith discovered cavities in five of plaintiff’s teeth. According to plaintiff, Dr. Smith told
him that the cavities would be filled and that none of the teeth would require extraction.
        {¶ 3} Before plaintiff received any further treatment, Dr. Smith ceased working
at GCI, and a number of other dentists practiced in the dental clinic throughout 2008
and 2009. Plaintiff testified that each of these dentists examined him independently to
determine a treatment plan, and that these dentists determined that one or more of his
teeth should be extracted. Plaintiff stated that he disagreed with such diagnoses, and
Case No. 2009-07024                           -2-                 MAGISTRATE DECISION

believed that he should have been provided the treatment originally prescribed by Dr.
Smith.
         {¶ 4} According to plaintiff, the first treatment that he received for any of the five
teeth at issue occurred in December 2008, when he received fillings in two of the teeth.
Plaintiff stated that he received fillings in two of the other teeth by October 2009, and
that the remaining tooth was extracted in January 2010. According to plaintiff, the tooth
that was extracted could have been “saved” if it had been filled earlier.
         {¶ 5} Inmates Charles Consolo and Martin Timperio testified that they have
been in defendant’s custody for many years and that they experienced delays in their
own dental treatment until personnel changes occurred in the dental clinic in early 2010.
         {¶ 6} Dr. Philip K. Meme testified that he has served as director of defendant’s
dental clinic since May 2010, and that he is employed by Mid-America Health
Corporation which contracts with defendant for the provision of inmate dental care. Dr.
Meme stated that an inmate’s course of treatment is determined by the treating dentist,
not by the inmate.        Dr. Meme further stated that when the dentist determines that
treatment is necessary, dental clinic staff schedule an appointment according to the
dentist’s instructions.    Dr. Meme stated that treatment is prioritized based upon its
urgency, as determined by the dentist, and that all treatment is provided as soon as
reasonably possible.
         {¶ 7} According to Dr. Meme, plaintiff’s dental records reflect that plaintiff was
seen in the dental clinic regularly from 2007 to the present, and that the longest period
of time during which he went without treatment was between March and August 2008.
         {¶ 8} Tara Cory, who is the lead dental assistant in the dental clinic and is
employed by Mid-America Health Corporation, testified that she is responsible for
scheduling inmates’ dental treatment.           Cory stated that treatment is scheduled
according to the treating dentist’s instructions, that treatment is prioritized based upon
Case No. 2009-07024                         -3-                 MAGISTRATE DECISION

its urgency, and that inmates are able to request appointments on their own by
submitting a “health services request” form.
       {¶ 9} Cory testified that, according to plaintiff’s dental records, she or other staff
in the dental clinic promptly scheduled plaintiff’s treatment as directed by his treating
dentists. Cory further testified that plaintiff failed to appear for an appointment on March
3, 2009, but that he appeared for a rescheduled appointment in July 2009. Cory stated
that plaintiff did not agree with the course of treatment prescribed by some of the
dentists who practiced in the clinic after Dr. Smith, and that she observed plaintiff argue
with Dr. Luke about her treatment plan for him.
       {¶ 10} Michelle Viets, now a regional nurse administrator for the Department of
Rehabilitation and Correction, was defendant’s health care administrator from 2004 to
2008. Viets testified that an inmate’s course of dental treatment is determined by the
treating dentist, and that such treatment is scheduled according to prioritized need, with
inmates who are in pain receiving the highest priority. Viets stated that plaintiff’s dental
records show that he was seen in the dental clinic routinely during the relevant time
period, and that his appointments were scheduled according to dentists’ instructions.
       {¶ 11} Kimberly Hughes, the current health care administrator for defendant,
testified that inmates’ dental treatment is scheduled according to dentists’ instructions.
       {¶ 12} 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.
Case No. 2009-07024                        -4-                 MAGISTRATE DECISION

       {¶ 13} Based upon the totality of the evidence, the court finds that defendant
timely scheduled plaintiff’s dental treatment based upon dentists’ instructions, and that
plaintiff has thus failed to prove his claim of negligence with respect to the scheduling of
such treatment.
       {¶ 14} Plaintiff’s assertion that one of his teeth was wrongly extracted when it
could have been saved states a claim for dental malpractice. Such a claim requires
expert testimony to establish: 1) the standard of care recognized by the dental
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; Palmer v. Richland Correctional Inst., Franklin App.
No. 04AP-540, 2004-Ohio-6717, ¶10.          However, plaintiff did not introduce expert
testimony.
       {¶ 15} Based upon the foregoing, it is recommended that judgment be rendered
in favor of defendant.
       A party may file written objections to the magistrate’s decision within 14 days of
the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,
any other party may also file objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion within 14 days of the filing of the
decision, as required by Civ.R. 53(D)(3)(b).



                                          _____________________________________
                                          ROBERT C. VAN SCHOYCK
                                          Magistrate
Case No. 2009-07024                 -5-              MAGISTRATE DECISION


cc:


Stephanie D. Pestello-Sharf          Ronnie Lee Wallace, #A140-221
Assistant Attorney General           Grafton Correctional Institution
150 East Gay Street, 18th Floor      2500 South Avon-Belden Road
Columbus, Ohio 43215-3130            Grafton, Ohio 44044

RCV/cmd
Filed January 5, 2011
To S.C. reporter January 27, 2011
