Pearsall v. Guernsey , 2017 Ohio 681 ( 2017 )

[Cite as Pearsall v. Guernsey, 2017-Ohio-681.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
SUSAN PEARSALL,
PLAINTIFF-APPELLANT, CASE NO. 5-16-25
v.
THOMAS C. GUERNSEY, DDS, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2016 CV 00067
Judgment Affirmed
Date of Decision: February 27, 2017
APPEARANCES:
Susan M. Pearsall, Appellant
Paul R. Bonfiglio for Appellee
Case No. 5-16-25
PRESTON, P.J.
{¶1} Plaintiff-appellant, Susan Pearsall (“Pearsall”), pro se, appeals the
judgment of the Hancock County Court of Common Pleas dismissing her complaint
against defendants-appellees, Thomas C. Guernsey, DDS (“Guernsey”) and Derik
E. Utz, DDS (“Utz”) (collectively “defendants”). For the reasons that follow, we
affirm.
{¶2} This case stems from a medical-malpractice complaint filed on October
23, 2014 for injuries Pearsall suffered after seeking dental treatment from Guernsey
from February 14 through April 29, 2013.1 (Doc. Nos. 1, 54). Pearsall’s October
23, 2014 complaint was dismissed by the trial court without prejudice on February
25, 2015 because she failed to file an affidavit of merit. (Id.).2
{¶3} Pearsall filed a second complaint on February 18, 2016, in which she
alleged medical negligence against Guernesy and Utz—that is, Pearsall alleged
Guernsey negligently performed dental work on her from February 14 through April
29, 2013 and alleged Utz negligently performed dental work on her on February 21,
2013. (Doc. No. 1). In her second complaint, Pearsall alleges that she discovered
defendants’ negligence in December 2015. (Doc. Nos. 1, 54). Pearsall further avers
in her second complaint that she sent defendants “180-day letters” on April 4, 2014.
1
“The original complaint named only Guernsey as a defendant but mentioned Utz as a dentist and individual
who provided her dental care in February of 2013.” (Doc. No. 54).
2
The record does not contain documents related to Pearsall’s October 23, 2014 complaint.
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(Doc. No. 1). Pearsall also averred that Guernsey received his 180-day letter on
April 9, 2014 and that Utz received his letter on April 24, 2014. (Id.).
{¶4} Defendants filed their answer on April 25, 2016 after the trial court
granted defendants an extension of time to file their answer.3 (Doc. Nos. 14, 17).
On May 5, 2016, Pearsall filed a motion for default judgment alleging that
defendants failed to file their answer prior to April 21, 2016 as ordered by the trial
court. (Doc. No. 19). Defendants filed a memorandum in opposition to Pearsall’s
motion for default judgment on May 9, 2016. (Doc. No. 21). The trial court denied
Pearsall’s motion on June 23, 2016. (Doc. No. 34).
{¶5} On July 27, 2016, Utz filed a motion to dismiss under Civ.R. 12(B)(6)
alleging that Pearsall’s complaint is barred by the statute of limitations. (Doc. No.
39). On August 17, 2016, Pearsall filed a memorandum in opposition to Utz’s
motion to dismiss and a motion for leave to amend her complaint. (Doc. No. 43).
Utz filed his reply to Pearsall’s memorandum in opposition to his motion to dismiss
on August 25, 2016. (Doc. No. 46). The trial court granted Utz’s motion to dismiss
on September 20, 2016 after concluding that Pearsall’s complaint is barred by the
statute of limitations, and denied Pearsall’s motion to amend her complaint. (Doc.
3
The trial court extended the time for defendants to file their answer until April 21, 2016. (Doc. No. 14).
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No. 54). On September 26, 2016, the trial court dismissed Pearsall’s complaint
against Utz.4 (Doc. No. 57).
{¶6} On October 26, 2016, Pearsall filed her notice of appeal of the trial
court’s September 26, 2016 order dismissing her complaint against Utz. (Doc. No.
64). She raises three assignments of error for our review, which we will discuss
together.
Assignment of Error No. I
The trial court erred in ordering the dismissal of the claim against
Utz based on the trial court’s decision to reject Pearsall’s
allegation of the date she discovered that the dental work Utz
performed on her was unnecessary and improper, the trial court’s
decision being supported by the trial court’s unmerited opinion
that the allegations are inconsistent.
Assignment of Error No. II
The trial court erred in denying Pearsall’s motion for leave to
amend complaint, the decision being supported by the trial
court’s unmerited opinion that such leave would be futile and the
trial court’s unmerited opinion that the allegations are
inconsistent.
Assignment of Error No. III
The trial court erred in ordering the dismissal of the claim against
Utz with prejudice when four years have not passed from the
occurrence date and facts could be pleaded properly that
determine the accrual date.
4
The trial court’s order dismissing Pearsall’s complaint against Utz is a final, appealable order because the
trial court specifically found that there is “no just reason for delay” in entering its final judgment under Civ.R.
54(B). (Doc. No. 57).
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{¶7} In her assignments of error, Pearsall argues that the trial court erred in
dismissing her complaint against Utz because her complaint is barred by the statute
of limitations under R.C. 2305.113. Specifically, in her first and second
assignments of error, Pearsall contends that the trial court erred by rejecting the date
she asserts she discovered her injury and erred by denying her motion to amend her
complaint to reflect that date of discovery. In her third assignment of error, Pearsall
contends the trial court erred by concluding that Ohio’s statute of repose does not
save her claim from being time barred.
{¶8} “A [Civ.R. 12(B)(6)] motion to dismiss for failure to state a claim upon
which relief can be granted is procedural and tests whether the complaint is
sufficient.” Bd. of Health of Defiance Cty. v. McCalla, 3d Dist. Defiance No. 4-12-
07, 2012-Ohio-4107, ¶ 33, citing State ex rel. Hanson v. Guernsey Cty. Bd. Of
Commrs., 65 Ohio St.3d 545, 548 (1992). “In order for a trial court to grant a motion
to dismiss for failure to state a claim upon which relief can be granted, it must appear
‘beyond doubt from the complaint that the plaintiff can prove no set of facts entitling
her to relief.’” McBroom v. Safford, 10th Dist. Franklin No. 11AP-885, 2012-Ohio-
1919, ¶ 7, quoting Grey v. Walgreen Co., 8th Dist. Cuyahoga No. 96846, 2011-
Ohio-6167, ¶ 3, citing LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323,
2007-Ohio-3608, ¶ 14. “[A]s long as there is a set of facts, consistent with the
plaintiff’s complaint, which would allow the plaintiff to recover, the court may not
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grant a defendant’s motion to dismiss.” York v. Ohio State Hwy. Patrol, 60 Ohio
St.3d 143, 144 (1991).
{¶9} “We review de novo a judgment on a Civ.R. 12(B)(6) motion to dismiss
for failure to state a claim upon which relief can be granted.” McCalla at ¶ 33, citing
Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5. “Under de
novo analysis, we are required to ‘accept all factual allegations of the complaint as
true and draw all reasonable inferences in favor of the nonmoving party.’”
McBroom at ¶ 9, quoting Grey at ¶ 3, citing Byrd v. Faber, 57 Ohio St.3d 56 (1991).
{¶10} Under R.C. 2305.113(A), “an action upon a * * * dental * * * claim
shall be commenced within one year after the cause of action accrued.” A “dental
claim” is:
any claim that is asserted in any civil action against a dentist, or
against any employee or agent of a dentist, and that arises out of a
dental operation or the dental diagnosis, care, or treatment of any
person.
R.C. 2305.113(E)(6).
{¶11} “A cause of action for medical malpractice accrues, and the one-year
statute of limitations commences to run when the patient discovers, or in the
exercise of reasonable care and diligence should have discovered, the resulting
injury or when the physician-patient relationship for that condition terminates,
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whichever occurs later.” Josolowitz v. Grant/Riverside Methodist Hosp. Corp., 10th
Dist. Franklin No. 99AP-1462, 2000 WL 861836, *2 (June 29, 2000), citing
Frysinger v. Leech, 32 Ohio St.3d 38 (1987), paragraph one of the syllabus. “In
making that determination, the court must look to the facts of the case in order to
find (1) when the injured party became aware, or should have become aware, of the
extent and seriousness of his condition, (2) whether the injured party was aware, or
should have been aware, that the condition was related to a specific medical service
previously rendered him, and (3) whether the condition would put a reasonable
person on notice of the need for further inquiry as to the cause of the condition.”
Tausch v. Riverview Health Inst., 187 Ohio App. 3d 173, 2010-Ohio-502, ¶ 39 (2d
Dist.), citing Hershberger v. Akron City Hosp., 34 Ohio St.3d 1 (1987).
{¶12} “In determining the first prong of the Hershberger test regarding the
injured party’s awareness of the extent and seriousness of his condition, the court
must find that a ‘cognizable event’ occurred that put the party on notice that his
injury is related to a specific medical procedure and of the need to pursue his
possible remedies.” Id. at ¶ 40, citing Allenius v. Thomas, 42 Ohio St.3d 131(1989).
“[C]onstructive knowledge of facts, rather than actual knowledge of
their legal significance, is enough to start the statute of limitations
running under the discovery rule. A plaintiff need not have
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discovered all the relevant facts necessary to file a claim in order to
trigger the statute of limitations.”
(Emphasis sic.) Id., quoting Flowers v. Walker, 63 Ohio St.3d 546, 549 (1992).
{¶13} However, “R.C. 2305.113(B) (formerly R.C. 2305.11(B)) ‘provides
an exception to [R.C. 2305.113(A)] by affording litigants the opportunity to extend
the one-year statute of limitations for an additional one hundred eighty days from
the time proper notice is given to potential defendants.’” Szwarga v. Riverside
Methodist Hosp., 10th Dist. Franklin No. 13AP-648, 2014-Ohio-4943, ¶ 8, quoting
Marshall v. Ortega, 87 Ohio St.3d 522, 523 (2000). R.C. 2305.113(B)(1) provides:
If prior to the expiration of the one-year period specified in division
(A) of this section, a claimant who allegedly possesses a * * * dental
* * * claim gives to the person who is the subject of that claim written
notice that the claimant is considering bringing an action upon that
claim, that action may be commenced against the person notified at
any time within one hundred eighty days after the notice is so given.
{¶14} The trial court did not err by dismissing Pearsall’s complaint under
Civ.R. 12(B)(6). There is no set of facts, consistent with Pearsall’s complaint,
which would allow her to recover—that is, it is apparent from the face of Pearsall’s
complaint that her complaint against Utz is barred by the statute of limitations under
R.C. 2305.113. Pearsall did not file her complaint against Utz within one-year of
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when she discovered, or in the exercise of reasonable care and diligence should have
discovered, her injury or when her dentist-patient relationship ended, and no
exception extending the statute of limitations applies.
{¶15} In this case, Pearsall alleges that she received dental care from Utz on
February 21, 2013, and that she terminated her relationship with the clinic at which
Utz is employed on April 29, 2013. Notwithstanding Pearsall’s allegation that she
did not discover that the dental care provided by Utz was “unnecessary and
improper” until December 2015, it is apparent from the face of the complaint that
April 29, 2013—the date which Pearsall terminated her relationship with the dental
clinic at which Utz is employed—is the cognizable event that put Pearsall on notice
of her cause of action against Utz. Indeed, Pearsall states in her complaint that she
sent 180-day letters to Guernsey and Utz “[p]rior to the expiration of the one-year
limitation of actions for malpractice” to ensure that “final notice was in effect given
to Utz and Guernsey each on April 29, 2014.” (Doc. No. 1 at Para. 15). Pearsall’s
letter to Utz, which is attached to her complaint, is captioned “Re: Notice that action
on claim may be commenced 180 days after April 29, 2014.” (Doc. No. 1, Ex. B).
In the letter, she informs Utz:
This is a written notice to notify you that I am considering bringing
an action upon a claim regarding the medical practice I was subject to
as your patient at Tri-County Dental Center.
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This notification extends the time period within [sic] the action may
be commenced by one hundred eighty days past April 29, 2014.
(Id.).
{¶16} Clearly, based on that letter, Pearsall’s cause of action was not
undiscovered by her until December 2015. Instead, by Pearsall’s own admission in
her complaint, the cognizable event triggering the commencement of the one-year
statute of limitations under R.C. 2305.113(A) occurred on April 29, 2013.
Accordingly, the one-year statute of limitations would have expired on April 29,
2014—as aptly pointed out in Pearsall’s complaint. Nonetheless, if we assume
without deciding that the letter Pearsall sent to Utz is a proper 180-day letter,
Pearsall would have extended the statute of limitations until October 24, 2014.5
{¶17} Pearsall filed her first complaint on October 23, 2014; however, that
complaint was dismissed by the trial court without prejudice on February 25, 2015
because she failed to file an affidavit of merit. Yet, R.C. 2305.19, Ohio’s savings
statute, provides, in relevant part:
In any action that is commenced or attempted to be commenced, [and]
if in due time * * * the plaintiff fails otherwise than upon the merits,
the plaintiff * * * may commence a new action within one year after
the date of * * * the plaintiff’s failure otherwise than upon the merits
5
Pearsall concedes in her complaint that Utz received his 180-day letter on April 24, 2014. (Doc. No. 1,
Para. 15).
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or within the period of the original applicable statute of limitations,
whichever occurs later.
{¶18} Pearsall filed her second complaint on February 18, 2016. At first
glance, it would appear that Pearsall’s second complaint is timely under R.C.
2305.19. However, “R.C. 2305.19 will ‘save’ a re-filed action that would otherwise
be barred by a statute of limitations when the requirements of the rule have been
satisfied, and ‘when the original suit and the new action are substantially the same.’”
Carl L. Brown, Inc. v. Lincoln Nat. Life Ins., 10th Dist. Franklin No. 02AP-225,
2003-Ohio-2577, ¶ 42, quoting Children’s Hospital v. Ohio Dept. of Pub. Welfare,
69 Ohio St.2d 523, 525 (1982). Under R.C. 2305.19, “‘actions are not substantially
the same, however, when the parties in the original action and those in the new
action are different.’” Id., quoting Children’s Hospital at 525. Pearsall’s first
complaint, as Pearsall concedes, did not name Utz as a defendant—it named only
Guernsey as a defendant. (See Doc. Nos. 1, 54); (Appellant’s Brief at 3). Because
Utz was not a party to Pearsall’s original action, Pearsall cannot take advantage of
the one-year “grace period” under R.C. 2305.19. Id. at ¶ 43. As such, Pearsall’s
February 18, 2016 complaint against Utz is untimely and barred by the statute of
limitations.
{¶19} Nonetheless, Pearsall argues in her second assignment of error that the
trial court erred by denying her motion for leave to amend her complaint to reflect
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that she discovered her injury in December 2015. “Pursuant to Civ.R. 15(A), after
responsive pleadings have been served, ‘a party may amend his pleading only by
leave of court or by written consent of the adverse party,’ and according to the rules,
‘[l]eave of court shall be freely given when justice so requires.’” Dublin v.
Wirchanski, 3d Dist. Union No. 14-10-22, 2011-Ohio-2461, ¶ 16, quoting Civ.R.
15(A). “While the rule allows for liberal amendment, motions should be refused if
there is a showing of bad faith, undue delay, or undue prejudice to the opposing
party.” Howick v. Lakewood Village Ltd. Partnership, 3d Dist. Mercer No. 10-06-
25, 2007-Ohio-4370, ¶ 37, citing Turner v. Cent. Local School Dist., 85 Ohio St.3d
92, 99 (1999). A trial court’s decision to grant or deny a motion for leave to amend
a pleading is discretionary and will not be reversed absent an abuse of discretion.
Id. at ¶ 37, citing State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610 (1996).
“An abuse of discretion connotes a decision that is unreasonable, arbitrary, or
unconscionable.” Id., citing State ex rel. Askew at 610. As we discussed above, the
face of Pearsall’s complaint alleges that she was on notice of her cause of action
prior to December 2015. As such, the trial court did not abuse its discretion by
denying her motion for leave to amend her complaint.
{¶20} Furthermore, it appears that Pearsall is arguing in her third assignment
of error that, notwithstanding the one-year statute of limitations imposed under R.C.
2305.113(A), she should have been permitted four years to file her complaint under
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R.C. 2305.113(C). Pearsall is mistaken. R.C. 2305.113(C), Ohio’s statute of
repose, provides:
(C) Except * * * as provided in division (D) of this section, both of
the following apply:
(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.
“Simply stated, regardless of the applicable statute of limitations, ‘a person must
file a medical claim no later than four years after the alleged act of malpractice
occurs or the claim will be barred.’” York v. Hutchins, 12th Dist. Butler No.
CA2013-09-173, 2014-Ohio-988, ¶ 10, quoting Ruther v. Kaiser, 134 Ohio St.3d
408, 2012-Ohio-5686, ¶ 2 (“The statute establishes a period beyond which medical
claims may not be brought even if the injury giving rise to the claim does not accrue
because it is undiscovered until after the period has ended.”). R.C. 2305.113(D)(1)
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and (2) provides limited exceptions to the four-year limitation “for malpractice
discovered during the fourth year after treatment and for malpractice that leaves a
foreign object in a patient’s body.” Ruther at ¶ 2. Under those exceptions, plaintiffs
have an additional year following the discovery of their injury to file a claim. Id.Ohio’s statute of repose is inapplicable to Pearsall’s claim to extend the one-year
statute of limitations because her injury was not undiscovered. Stated differently,
Ohio’s statute of repose forever bars any claim after the four-year period provided
by R.C. 2305.113(C) expires, while R.C. 2305.113(A) bars claims not commenced
within one year of “discovery.”
{¶21} For these reasons, the trial court did not err in granting Utz’s motion
to dismiss under Civ.R. 12(B)(6).
{¶22} As such, Pearsall’s assignments of error are overruled.
{¶23} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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