Ohio Miscellaneous Reports

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THOMAS v. UNIV. OF AKRON, 121 Ohio Misc.2d 108 (2002)
782 N.E.2d 707
THOMAS v. UNIVERSITY OF AKRON.
No. 2000-08753.
Court of Claims of Ohio.
Decided December 13, 2002.

Walter Kaufmann, for plaintiff.

Betty D. Montgomery, Attorney General, and John P. Reichley, Assistant
Attorney General, for defendant.
Page 109

Fred J. Shoemaker, Judge.

{ 1} This case was tried to the court on the issue of damages.
Plaintiff and defendant had previously filed a stipulation that defendant
breached a duty of reasonable care that it owed to plaintiff; however,
defendant denied that the incident giving rise to plaintiff's negligence
claim proximately caused injury to plaintiff.

{ 2} Based upon the evidence presented, the court makes the
following factual findings. On August 31, 1998, plaintiff was a student
at defendant, University of Akron ("UA"). On that date, plaintiff, who is
vision-impaired, slipped in a pool of water that had backed up in the
shower drain of UA's dormitory, causing him to fall. Plaintiff landed on
his right side, suffering a soft-tissue injury to his right shoulder and
neck.

{ 3} Plaintiff initially was treated at UA's infirmary. He
subsequently started physical therapy at UA's medical facility, while
continuing with his studies; however, he did not complete the therapy
because he did not believe it to be effective. Plaintiff graduated from
UA in 1999.

{ 4} Plaintiff returned to his hometown of Marietta, where he
resided with his parents the first year. He began treatment for his neck
and shoulder pain with his family physician, Dr. Charles Williams, who
prescribed both pain medication and a referral to Dr. Sanjay Mehta, an
orthopedist. Plaintiff was also examined by an orthopedic surgeon Dr.
Gerald Rosenberg, who recommended surgery. As of the time of trial,
plaintiff had not had surgery on his shoulder.

{ 5} In addition, Dr. Williams referred plaintiff to Dr. Michael
Shramowiat, a practitioner in Vienna, West Virginia. Dr. Shramowiat
diagnosed plaintiff's condition as "cervical sprain, cervical
reticulopathy and right shoulder impingement." Dr. Shramowiat noted that
an MRI of plaintiff, taken on March 27, 2001, "showed a disc herniation
at T3-4." Dr. Shramowiat stated in his deposition that plaintiff "could
have had a resultant disc herniation from the fall." Plaintiff had an EMG
taken on April 12, 2001, and the reading was normal. Dr. Shramowiat
opined that as a result of the fall, plaintiff's injuries included
tendonitis and "more than likely the disc herniation." He also stated
that aside from any degenerative changes, the tendonitis and disc
herniation are conditions that can heal.

{ 6} Dr. Shramowiat initially treated plaintiff with Noroxin, a
pain medication, as well as Vioxx, an anti-inflammatory. He further
recommended that plaintiff use a TENS unit, an electrical stimulation
machine, to treat his pain. Dr. Shramowiat also referred plaintiff for
physical therapy three times a week for a four-week period. Plaintiff
began the therapy, but he did not complete the regimen.
Page 110

{ 7} The deposition testimony of Dr. Walter Hauser was introduced
at trial. Dr. Hauser testified that, at defendant's request, he conducted
an independent examination of plaintiff on October 9, 2002. Dr. Hauser
noted tenderness over the top of plaintiff's right shoulder in the upper
trapezius area, as well as discomfort over plaintiff's right
acromioclavicular joint. Dr. Hauser noted no objective findings during
his examination and stated, "The only abnormal findings were the areas of
discomfort that he pointed out, which are subjective, and the slight
limitation of the rotation in the cervical area, or the neck." Dr. Hauser
opined that plaintiff had a minor strain of the cervical area. Dr. Hauser
also opined that plaintiff had mild, minor degenerative changes
associated with his cervical spine prior to his fall on August 31, 1998.
Dr. Hauser stated that plaintiff "did sustain some type of injury to his
right shoulder" as a result of his fall, but that "there wasn't any
evidence on his x-rays or his MRI of anything other than some minor wear
and tear changes on his shoulder." Dr. Hauser stated that he saw no
reason to direct plaintiff for any further treatment.

{ 8} Plaintiff, who is currently employed as an assistant housing
specialist, uses a TENS unit for pain management on a daily basis. He
testified that his injuries have not healed and that he continues to
experience pain, especially in instances in which he is required to raise
his arm at shoulder level and above. Plaintiff further stated that his
injuries have slowed him down and made him less independent.

{ 9} The court finds, pursuant to the aforementioned
stipulation, that UA was negligent and breached its duty of reasonable
care owed to plaintiff. The court further finds that defendant's breach
of duty proximately caused plaintiff's injury.

{ 10} At trial, plaintiff introduced evidence of unpaid medical
bills. In an action against a university, R.C. 3345.40 sets forth
criteria regarding the recovery of damages. Among the allowable damages
under that statute, an injured plaintiff is entitled to recover, as
"actual loss," expenditures for medical care or treatment that were
necessary because of the injury. Based upon the above-cited facts, the
court concludes that plaintiff is entitled to recover total damages in
the amount of $25,000, including damages for actual loss in the form of
unpaid medical bills and pain and suffering incurred as a direct and
proximate result of defendant's negligence. Accordingly, judgment shall be
rendered in that amount plus the filing fee paid by plaintiff.

Judgment for plaintiff.

Fred J. Shoemaker, J., retired, of the Franklin County Court of Common
Pleas, sitting by assignment.
Page 111



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