Pollock v. Brian J. Britt, D.D.S., L.L.C.
2021 Ohio 3820
| Ohio Ct. App. | 2021Background
- Pollock filed a dental-malpractice complaint on January 30, 2020, alleging defendants failed to diagnose a keratocystic odontogenic tumor visible on serial panoramic x‑rays from 2005 through 2018, requiring surgeries after discovery in August 2018.
- Defendants moved for summary judgment, invoking Ohio’s four‑year medical statute of repose, R.C. 2305.113(C), arguing the latest actionable omission occurred by September 27, 2011 (per their position), so any suit after September 27, 2015 was barred.
- Pollock opposed, relying on his expert and dental records to identify multiple missed diagnostic opportunities (occurrences) from 2005 through April 3, 2018, contending an April 2018 omission kept the claim within the repose period.
- Pollock’s complaint itself alleged negligence tied to the November 18, 2014 x‑rays; his expert also stated the negligence was evident by September 27, 2011 at the latest, though the expert noted earlier and later imaging.
- The trial court granted summary judgment for defendants; the court of appeals affirmed, concluding the statute of repose barred Pollock’s claim because the alleged negligence occurred more than four years before suit and later missed recognitions in the same continuing course did not restart the repose period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether repeated failures to diagnose in a continuing course constitute separate "occurrences" that reset R.C. 2305.113(C)’s four‑year statute of repose | Pollock: each missed diagnosis (including April 2018) is an independent occurrence, so the claim was filed within four years | Defendants: the actionable omission occurred by Sept. 27, 2011 (or at latest Nov. 18, 2014); repose began then, so suit filed in 2020 is time‑barred | Court: statute of repose measures from the occurrence of the act/omission; later missed recognitions within the same continuing course do not restart the repose period—claim barred |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (appellate de novo review of summary judgment)
- Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679 (Ohio 1995) (summary judgment standards)
- Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367 (Ohio 1998) (summary judgment standard and construing evidence for nonmoving party)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (burden on movant in summary judgment)
- Ruther v. Kaiser, 134 Ohio St.3d 408 (Ohio 2012) (policy rationales and nature of R.C. 2305.113 as a true statute of repose)
- Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483 (Ohio 2016) (statute of repose bars suits not commenced within four years after the act or omission; plain language controls)