[Cite as Ander v. Clark, 2014-Ohio-2664.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Michelle Ander et al.,                            :

                Plaintiffs-Appellants,            :

v.                                                :                   No. 14AP-65
                                                                  (C.P.C. No. 13CVA-11636)
Todd Clark, OD et al.,                            :
                                                              (ACCELERATED CALENDAR)
                Defendants-Appellees.             :


                                            D E C I S I O N

                                      Rendered on June 19, 2014


                Donahey Defossez & Beausay, and T. Jeffrey Beausay, for
                appellants.

                Freund, Freeze & Arnold, and Mark A. MacDonald, for
                appellees.

                  APPEAL from the Franklin County Court of Common Pleas

TYACK, J.

        {¶ 1} Plaintiff-appellant, Michelle Ander, appeals from the decision and entry of
the Franklin County Court of Common Pleas dismissing her complaint for optometric
negligence. Specifically, the trial court dismissed the claim under Civ.R. 12(B)(6) as
barred by the four-year statute of repose in R.C. 2305.113(C).
        {¶ 2} Anders assigns three errors for our consideration:
                [I.] The trial court erred in granting defendants' Rule
                12(B)(6) motion.

                [II.] The trial court erred in failing to give plaintiffs an
                opportunity to amend the complaint.
No. 14AP-65                                                                              2


              [III.] The trial court erred in failing to explicitly state that the
              dismissal was otherwise than on the merits.

       {¶ 3} According to the rather sparse complaint filed on October 21, 2013, Ander
was a patient of defendant-appellee, Todd Clark, OD, a licensed optometrist in the state of
Ohio. She alleged that in July 2003, Clark recognized an abnormality in Ander's eyes
known as "Kruckenberg spindles," but failed to recommend or perform additional studies
and failed to refer Ander to an ophthalmologist. As a result of this alleged negligence,
Ander suffered a permanent loss of vision and was not correctly diagnosed and treated for
glaucoma until November 2012 when she was finally referred to a glaucoma specialist by
another optometrist.
       {¶ 4} Clark and his employer, Image Optical, LLC, filed a motion to dismiss for
failure to state a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6).
Specifically, appellee claimed that Ander's claim was barred by the four-year statute of
repose set forth in R.C. 2305.113(C).
       {¶ 5} Pursuant to R.C. 2305.113(C), except for certain enumerated exceptions not
applicable here:
              (1) No action upon a medical, dental, optometric, or
              chiropractic claim shall be commenced more than four years
              after the occurrence of the act or omission constituting the
              alleged basis of the medical, dental, optometric, or
              chiropractic claim.

              (2) If an action upon a medical, dental, optometric, or
              chiropractic claim is not commenced within four years after
              the occurrence of the act or omission constituting the alleged
              basis of the medical, dental, optometric, or chiropractic
              claim, then, any action upon that claim is barred.

       {¶ 6} "[T]he General Assembly recognized in R.C. 2305.113 that in some cases, an
injury may not manifest itself within one year of a breach of a duty of care and so has
provided the general discovery period of four years. Within that boundary, when the
patient discovers or should have discovered the injury, or when the relationship with the
doctor terminates, whichever is later, the one-year statute of limitations begins to run."
Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, ¶ 18. In Ruther, syllabus, the
Supreme Court of Ohio found that "[t]he medical-malpractice statute of repose found in
No. 14AP-65                                                                                3


R.C. 2305.113(C) does not extinguish a vested right and thus does not violate the Ohio
Constitution, Article I, Section 16." A vested right occurs when there is " 'the existence of
a duty, a breach of that duty and injury resulting proximately therefrom.' " Id. at ¶ 16,
quoting Mussivand v. David, 45 Ohio St.2d 314, 318 (1989). R.C. 2305.113(C) thus bars
claims that have not vested within four years of the negligent act. Once vesting occurs, the
timeliness of the complaint is controlled by the statute of limitations and its relevant
tolling provisions such as the discovery rule.
       {¶ 7} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which
relief can be granted tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992). "[W]hen a party files a
motion to dismiss for failure to state a claim, all the factual allegations of the complaint
must be taken as true and all reasonable inferences must be drawn in favor of the
nonmoving party." Byrd v. Faber, 57 Ohio St.3d 56, 60 (1991). In order for a trial court to
dismiss a complaint under Civ.R. 12(B)(6), it must appear beyond a reasonable doubt
from the complaint that the plaintiff can prove no set of facts entitling him to recovery.
LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, ¶ 14. A
reviewing court conducts a de novo review of a trial court's decision on a motion to
dismiss. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5.
       {¶ 8} Here, the complaint does not specify when the alleged negligence took
place. Appellees inferred the claim arose in 2003 when Ander was first diagnosed with
Kruckenberg spindles. However, the discovery of Kruckenberg spindles in 2003 was not
claimed to be negligent.     Rather, Clark's discovery of the condition was an act of
optometric competence. The complaint stated that Clark's negligence arose when he
failed to recommend or perform additional studies and failed to refer Ander to an
ophthalmologist. Ander argues that the alleged negligence was a failure to manage her
care properly over the prior decade. How much time should pass before a referral to a
specialist is not part of the complaint, and requires discovery and further development of
the case.   It is reasonable to infer that the alleged negligence did not arise until some
period of time had passed.
       {¶ 9} Discovery can flesh out what Clark did or did not do, why he did what he
did, how he interpreted the records available to Ander, and what other information exists
No. 14AP-65                                                                               4


outside of the electronic record. Ander should be given the opportunity to develop her
case because it cannot be said with certainty that her claim is barred by R.C. 2305.113.
Therefore, dismissal for failure to state a claim was premature and erroneous.
       {¶ 10} We recognize that further discovery might show the claim to be time
barred, but at this stage of the litigation it cannot be said that Ander can prove no set of
facts entitling her to recovery.
       {¶ 11} The first assignment of error is sustained.         The second and third
assignments of error are overruled as moot. The judgment of the Franklin County Court
of Common Pleas is reversed, and the cause is remanded for further proceedings in
accordance with this decision.
                                                        Judgment reversed and remanded
                                                                 for further proceedings.

                            BROWN and CONNOR, JJ., concur.
