Ander v. Clark
2014 Ohio 2664
Ohio Ct. App.2014Background
- Plaintiff Michelle Ander alleged optometrist Todd Clark recognized "Kruckenberg spindles" in July 2003 but failed over the following years to order further testing or refer her to an ophthalmologist.
- Ander was not correctly diagnosed and treated for glaucoma until November 2012 by another optometrist, and alleges permanent vision loss from Clark's negligence.
- Ander filed suit on October 21, 2013 for optometric negligence.
- Defendants moved to dismiss under Civ.R. 12(B)(6), arguing the four-year statute of repose for medical claims, R.C. 2305.113(C), barred the action.
- The trial court granted dismissal; Ander appealed. The appellate court reviewed whether dismissal was proper at the pleading stage given uncertainty about when the negligent act(s) occurred or vested.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held | |
|---|---|---|---|---|
| Whether claim is barred by R.C. 2305.113(C) statute of repose | Ander contends negligence was ongoing (failure to manage care) and vesting occurred within the repose period | Clark argues the operative act/omission occurred in 2003 and the claim is time-barred after four years | Reversed: at pleading stage, cannot say beyond doubt claim is barred; dismissal premature | |
| Whether dismissal under Civ.R. 12(B)(6) was appropriate without discovery | Ander: facts about timing and management require discovery to determine vesting | Clark: complaint fails to state a claim because of repose bar | Held dismissal was improper because factual development may show vesting within repose period | |
| Whether court should have allowed amendment of complaint | Ander sought opportunity to amend | Defendants did not oppose dismissal without leave | Issue rendered moot by reversal; appellate court did not require amendment | Overruled as moot |
| Whether dismissal should be designated as otherwise than on the merits | Ander requested explicit non-merits language to preserve rights | Defendants did not address this; trial court did not designate | Appellate court found this issue moot given reversal | Overruled as moot |
Key Cases Cited
- Ruther v. Kaiser, 134 Ohio St.3d 408 (Sup. Ct. Ohio 2012) (explains interplay of four-year statute of repose and one-year discovery statute of limitations for medical claims)
- Mussivand v. David, 45 Ohio St.2d 314 (Ohio 1976) (defines "vesting" as duty, breach, and proximate injury)
- Byrd v. Faber, 57 Ohio St.3d 56 (Ohio 1991) (motion to dismiss tests legal sufficiency; pleadings taken as true)
- LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323 (Ohio 2007) (12(B)(6) dismissal requires plaintiff can prove no set of facts entitling recovery)
- Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79 (Ohio 2004) (appellate review of 12(B)(6) is de novo)