[Cite as McCarthy v. Ketner, 2023-Ohio-4241.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
Jason McCarthy, et al. Court of Appeals No. WD-22-071
Appellants Trial Court No. 22-CVF-00814
v.
Mark Ketner, DVM, et al. DECISION AND JUDGMENT
Appellees Decided: November 22, 2023
*****
J. Jeffrey Holland, for appellants.
Jerome F. Rolfes and Thomas E. Switzer, for appellees.
***** SULEK, J.
{¶ 1} Appellants Jason McCarthy and Christina Torda (“owners”) appeal the
December 6, 2022 judgment of the Bowling Green Municipal Court dismissing their
complaint against appellees Mark Ketner, DVM, Richard Martin, DVM, Midway Animal
Hospital, Inc., and Unknown Defendants 1-5 (collectively, “Midway”). Because the
veterinary negligence claim is not time-barred, the trial court’s judgment is reversed, in
part. I. Facts and Procedural Background
{¶ 2} According to owners’ complaint and attached expert opinion, in February
2019, their 12-year-old female Golden Retriever/Labrador mixed-breed dog, Ursa, was a
registered patient of Midway Animal Hospital. Ursa was prescribed Carprochew, a non-
steroidal, anti-inflammatory medication (“NSAID”), to treat her arthritis. At that time,
owners’ request for a referral to an orthopedist was deemed unnecessary.
{¶ 3} On January 31, 2020, Ursa returned to the clinic for reevaluation and
radiological examination. She was diagnosed with “bad arthritis” in her right elbow.
Symptomatic treatment continued following appellee Dr. Richard Martin’s telephone
consultation with an orthopedic surgeon from The Ohio State University. Ursa’s
medication was changed from Carprochew to Deramaxx, with the active ingredient of
deracoxib, also an NSAID. In February, the pain medication gabapentin was also
prescribed.
{¶ 4} In June and July 2020, owners reported that Ursa was exhibiting signs of
depression, lethargy, and incoordination and weakness in her hind legs. Ursa’s blood was
tested on August 1, 2020; Midway reported that the results were normal. On September
28 and 30, 2020, owners reported to Midway that Ursa was drinking water excessively,
was vomiting and had diarrhea, had difficulty eating, and had blood in her stool.
{¶ 5} Ursa was hospitalized from October 2, to October 4, 2020. She continued to
take Deramaxx following her discharge. Her condition steadily deteriorated and by
October 6, 2020, she was unable to stand. On October 7 and 9, Midway gave Ursa a
2. steroid injection, an oral steroid, and she was continued on the prescribed NSAID
medication.
{¶ 6} On October 10, 2020, owners took Ursa to a second veterinary clinic where
they allegedly learned for the first time the dangerous side effects and contraindications
of Deramaxx use. The clinic performed an ultrasound resulting in exploratory abdominal
surgery and gallbladder removal. The surgery revealed that the intestinal wall had
multiple areas of erosion and ulceration, known side-effects of extended Deramaxx use.
Ursa died on October 14, 2020.
{¶ 7} Owners commenced this action on October 10, 2022 alleging that Midway’s
failure to adequately examine, diagnose and treat Ursa caused her death. They maintain
that the deterioration of Ursa’s condition and ultimate death, was caused by long-term,
unmonitored NSAID use combined with the administration of two steroidal anti-
inflammatory drugs. Owners asserted five counts: negligence/negligent
misrepresentation, breach of contract, breach of fiduciary duty, breach of bailment, and
punitive damages.
{¶ 8} On November 14, 2022, Midway filed a Civ.R. 12(B)(6) motion to dismiss
arguing that the veterinary negligence claim was time-barred, that the breach of contract
and breach of bailment claims were subsumed under the veterinary negligence claim, that
as a matter of law no fiduciary duty is owed to an animal owner, and that recovery of
punitive damages was linked to the time-barred tort claim. Midway further argued that as
a matter of law the veterinary negligence claim against Midway Animal Hospital, Inc.,
3. fails because a corporation does not practice medicine and cannot be sued for
malpractice. Owners opposed the motion.
{¶ 9} On December 6, 2022, the trial court summarily granted Midway’s motion
to dismiss “for the reasons articulated in defendants’ Motion and Reply Brief and after
careful consideration of the plaintiffs’ Brief in Opposition.” This appeal followed.
II. Assignment of Error
{¶ 10} Owners raise the following assignment of error on appeal:
The Trial Court erred by granting Defendants’/Appellees’ motion to
dismiss Appellants’ complaint for failure to articulate a cause of action
upon which relief can be granted.
III. Analysis
A. Standard of Review
{¶ 11} Appellate courts review de novo a trial court’s decision granting a Civ.R.
12(B)(6) motion to dismiss for failure to state a claim upon which relief may be granted.
Curcio v. Hufford, 2022-Ohio-4766, 204 N.E.3d 1107, ¶ 12 (6th Dist.), citing Perrysburg
Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. “A motion to
dismiss under Civ.R. 12(B)(6) is procedural in nature and tests the sufficiency of the
complaint.” Buckley v. Croghan Colonial Bank, 6th Dist. Lucas No. L-22-1103, 2022-
Ohio-3684, ¶ 10, citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio
St.3d 545, 548, 605 N.E.2d 378 (1992). A court is permitted to consider the complaint,
4. answer, and any material either incorporated by reference or attached to those pleadings.
Walker v. Toledo, 2017-Ohio-416, 84 N.E.3d 216 (6th Dist.), ¶ 19; Civ.R. 10(C).
{¶ 12} In reviewing a Civ.R. 12(B)(6) motion, the court presumes that the
complaint’s factual allegations are true and makes all reasonable inferences in the
nonmoving party’s favor. Curcio at ¶ 12, citing Mitchell v. Lawson Milk Co., 40 Ohio
St.3d 190, 192, 532 N.E.2d 753 (1988). To dismiss the complaint, “‘it must appear
beyond doubt that the plaintiff can prove no set of facts in support of the claim that would
entitle the plaintiff to the relief sought.’” Id., quoting Ohio Bur. of Workers’ Comp. v.
McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12. This standard
applies motions to dismiss based on limitations grounds. Krohn v. Ostafi, 6th Dist. Lucas
L-19-1002, 2020-Ohio-1536, ¶ 12, quoting LGR Realty, Inc. v. Frank & London, Ins.
Agency, 152 Ohio St.3d 517, 2018-Ohio-334, 98 N.E.3d 241, ¶ 10.
B. Veterinary Negligence/Negligent Misrepresentation
{¶ 13} Owners first dispute the trial court’s finding that they failed to assert their
veterinary negligence claim within the two-year limitations period under R.C. 2305.10.
R.C. 2305.10 relevantly provides:
(A) Except as provided in division (C) or (E) of this section, an
action based on a product liability claim and an action for bodily injury or
injuring personal property shall be brought within two years after the cause
of action accrues. Except as provided in divisions (B)(1), (2), (3), (4), and
5. (5) of this section, a cause of action accrues under this division when the
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[Cite as McCarthy v. Ketner, 2023-Ohio-4241.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
Jason McCarthy, et al. Court of Appeals No. WD-22-071
Appellants Trial Court No. 22-CVF-00814
v.
Mark Ketner, DVM, et al. DECISION AND JUDGMENT
Appellees Decided: November 22, 2023
*****
J. Jeffrey Holland, for appellants.
Jerome F. Rolfes and Thomas E. Switzer, for appellees.
***** SULEK, J.
{¶ 1} Appellants Jason McCarthy and Christina Torda (“owners”) appeal the
December 6, 2022 judgment of the Bowling Green Municipal Court dismissing their
complaint against appellees Mark Ketner, DVM, Richard Martin, DVM, Midway Animal
Hospital, Inc., and Unknown Defendants 1-5 (collectively, “Midway”). Because the
veterinary negligence claim is not time-barred, the trial court’s judgment is reversed, in
part. I. Facts and Procedural Background
{¶ 2} According to owners’ complaint and attached expert opinion, in February
2019, their 12-year-old female Golden Retriever/Labrador mixed-breed dog, Ursa, was a
registered patient of Midway Animal Hospital. Ursa was prescribed Carprochew, a non-
steroidal, anti-inflammatory medication (“NSAID”), to treat her arthritis. At that time,
owners’ request for a referral to an orthopedist was deemed unnecessary.
{¶ 3} On January 31, 2020, Ursa returned to the clinic for reevaluation and
radiological examination. She was diagnosed with “bad arthritis” in her right elbow.
Symptomatic treatment continued following appellee Dr. Richard Martin’s telephone
consultation with an orthopedic surgeon from The Ohio State University. Ursa’s
medication was changed from Carprochew to Deramaxx, with the active ingredient of
deracoxib, also an NSAID. In February, the pain medication gabapentin was also
prescribed.
{¶ 4} In June and July 2020, owners reported that Ursa was exhibiting signs of
depression, lethargy, and incoordination and weakness in her hind legs. Ursa’s blood was
tested on August 1, 2020; Midway reported that the results were normal. On September
28 and 30, 2020, owners reported to Midway that Ursa was drinking water excessively,
was vomiting and had diarrhea, had difficulty eating, and had blood in her stool.
{¶ 5} Ursa was hospitalized from October 2, to October 4, 2020. She continued to
take Deramaxx following her discharge. Her condition steadily deteriorated and by
October 6, 2020, she was unable to stand. On October 7 and 9, Midway gave Ursa a
2. steroid injection, an oral steroid, and she was continued on the prescribed NSAID
medication.
{¶ 6} On October 10, 2020, owners took Ursa to a second veterinary clinic where
they allegedly learned for the first time the dangerous side effects and contraindications
of Deramaxx use. The clinic performed an ultrasound resulting in exploratory abdominal
surgery and gallbladder removal. The surgery revealed that the intestinal wall had
multiple areas of erosion and ulceration, known side-effects of extended Deramaxx use.
Ursa died on October 14, 2020.
{¶ 7} Owners commenced this action on October 10, 2022 alleging that Midway’s
failure to adequately examine, diagnose and treat Ursa caused her death. They maintain
that the deterioration of Ursa’s condition and ultimate death, was caused by long-term,
unmonitored NSAID use combined with the administration of two steroidal anti-
inflammatory drugs. Owners asserted five counts: negligence/negligent
misrepresentation, breach of contract, breach of fiduciary duty, breach of bailment, and
punitive damages.
{¶ 8} On November 14, 2022, Midway filed a Civ.R. 12(B)(6) motion to dismiss
arguing that the veterinary negligence claim was time-barred, that the breach of contract
and breach of bailment claims were subsumed under the veterinary negligence claim, that
as a matter of law no fiduciary duty is owed to an animal owner, and that recovery of
punitive damages was linked to the time-barred tort claim. Midway further argued that as
a matter of law the veterinary negligence claim against Midway Animal Hospital, Inc.,
3. fails because a corporation does not practice medicine and cannot be sued for
malpractice. Owners opposed the motion.
{¶ 9} On December 6, 2022, the trial court summarily granted Midway’s motion
to dismiss “for the reasons articulated in defendants’ Motion and Reply Brief and after
careful consideration of the plaintiffs’ Brief in Opposition.” This appeal followed.
II. Assignment of Error
{¶ 10} Owners raise the following assignment of error on appeal:
The Trial Court erred by granting Defendants’/Appellees’ motion to
dismiss Appellants’ complaint for failure to articulate a cause of action
upon which relief can be granted.
III. Analysis
A. Standard of Review
{¶ 11} Appellate courts review de novo a trial court’s decision granting a Civ.R.
12(B)(6) motion to dismiss for failure to state a claim upon which relief may be granted.
Curcio v. Hufford, 2022-Ohio-4766, 204 N.E.3d 1107, ¶ 12 (6th Dist.), citing Perrysburg
Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. “A motion to
dismiss under Civ.R. 12(B)(6) is procedural in nature and tests the sufficiency of the
complaint.” Buckley v. Croghan Colonial Bank, 6th Dist. Lucas No. L-22-1103, 2022-
Ohio-3684, ¶ 10, citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio
St.3d 545, 548, 605 N.E.2d 378 (1992). A court is permitted to consider the complaint,
4. answer, and any material either incorporated by reference or attached to those pleadings.
Walker v. Toledo, 2017-Ohio-416, 84 N.E.3d 216 (6th Dist.), ¶ 19; Civ.R. 10(C).
{¶ 12} In reviewing a Civ.R. 12(B)(6) motion, the court presumes that the
complaint’s factual allegations are true and makes all reasonable inferences in the
nonmoving party’s favor. Curcio at ¶ 12, citing Mitchell v. Lawson Milk Co., 40 Ohio
St.3d 190, 192, 532 N.E.2d 753 (1988). To dismiss the complaint, “‘it must appear
beyond doubt that the plaintiff can prove no set of facts in support of the claim that would
entitle the plaintiff to the relief sought.’” Id., quoting Ohio Bur. of Workers’ Comp. v.
McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12. This standard
applies motions to dismiss based on limitations grounds. Krohn v. Ostafi, 6th Dist. Lucas
L-19-1002, 2020-Ohio-1536, ¶ 12, quoting LGR Realty, Inc. v. Frank & London, Ins.
Agency, 152 Ohio St.3d 517, 2018-Ohio-334, 98 N.E.3d 241, ¶ 10.
B. Veterinary Negligence/Negligent Misrepresentation
{¶ 13} Owners first dispute the trial court’s finding that they failed to assert their
veterinary negligence claim within the two-year limitations period under R.C. 2305.10.
R.C. 2305.10 relevantly provides:
(A) Except as provided in division (C) or (E) of this section, an
action based on a product liability claim and an action for bodily injury or
injuring personal property shall be brought within two years after the cause
of action accrues. Except as provided in divisions (B)(1), (2), (3), (4), and
5. (5) of this section, a cause of action accrues under this division when the
injury or loss to person or property occurs.
{¶ 14} Midway correctly states that in Ohio, a dog is considered personal property.
R.C. 955.03 provides:
Any dog which has been registered under sections 955.01 and
955.04 of the Revised Code and any dog not required to be registered under
such sections shall be considered as personal property and have all the
rights and privileges and be subject to like restraints as other livestock.
{¶ 15} “A plaintiff’s burden to establish veterinary negligence parallels a
plaintiff’s burden in establishing professional negligence against other medical
professionals.” Ullmann v. Duffus, 10th Dist. Franklin No. 05AP-299, 2005-Ohio-6060,
¶ 14; see also Lauderbaugh v. Gellasch, 8th Dist. Cuyahoga No. 91430, 2008-Ohio-6500,
¶ 7. “The plaintiff must show (1) a duty to perform according to the appropriate
veterinary standards; (2) that the veterinarian breached that duty; (3) that the breach was
the proximate cause of the damages; and (4) that the plaintiff suffered damages.”
Lauderbaugh at ¶ 7, citing Peltier v. McCartan, 3d Dist. Shelby No. 17-05–14, 2005-
Ohio-3901, ¶ 9; see also Kaiser v. Helbig, 3d Dist. Union No. 14-20-14, 2021-Ohio-887,
¶ 9; Ullmann at ¶ 14.
{¶ 16} Owners argue that Ursa’s death was caused by the long-term use of
NSAIDs and the use of contraindicated steroidal anti-inflammatories, as expressed in
their expert’s opinion letter. They assert that the statute of limitations began running
6. under either the last date of treatment, October 9, 2020, or the date of Ursa’s death,
October 14, 2020.
{¶ 17} Conversely, Midway maintains that the action was time-barred because the
alleged first injury to Ursa occurred in June 2020, when Ursa’s condition worsened.
Midway contends that the course-of-treatment rule does not apply to professional
negligence claims and that the statute of limitations begins running at the time of the
negligent act regardless of when the damages resulted. Alternatively, Midway contends
that even assuming the viability of the course-of-treatment analysis, the claim was still
untimely as the complaint alleged that October 7, 2020 was the last day Midway treated
Ursa and administered the NSAID Deramaxx.
{¶ 18} Owners’ complaint alleges that “Ursa’s death was caused by [Midway’s]
acts or omissions, which a veterinarian of ordinary skill, care, and diligence would not
have done under similar circumstances.” Also, “[Midway’s] negligent representations,
misrepresentations, actions, and failures to act were the direct and proximate cause of
Ursa’s death * * *. Owners, therefore, are seeking to recover for the loss of Ursa, which
occurred on October 14, 2020 when the dog died. Owners then filed their complaint on
October 10, 2022, prior to the expiration of the statute of limitations. Thus, the trial court
erred in dismissing owners’ claim for negligence.
{¶ 19} The parties’ arguments include discussion of the Ohio discovery rule,
which provides that the cause of action accrues when the plaintiff discovers or should
have discovered the injury caused by the defendant. See O’Stricker v. Jim Walter, Corp.,
7. 4 Ohio St.3d 84, 447 N.E.2d 727 (1983). We need not analyze whether the discovery
rule applies to claims for veterinary negligence, however, because owners timely filed
their claim within two years of the loss of Ursa.
{¶ 20} Construing the facts alleged in the complaint in owners’ favor, the trial
court erred in dismissing their veterinary negligence/negligent misrepresentation claim
for relief based on the expiration of the limitations period under R.C. 2305.10 because the
complaint was filed within two years of the loss of Ursa. Thus, for Civ.R. 12(B)(6)
purposes, the complaint was timely filed.
C. Corporate Liability
{¶ 21} Owners argue that the trial court erred by dismissing their claims against
Midway Animal Hospital, Inc., based on Midway’s assertion that in a veterinary
negligence action, only licensed veterinarians may be sued directly. Owners generally
contend that corporations can be found secondarily liable for other forms of negligence.
{¶ 22} Citing Lawrence v. Big Creek Veterinary Hosp., L.L.C., 11th Dist. Geauga
No. 2006-G-2737, 2007-Ohio-4627, Midway argues that Ohio law has not applied the
doctrine of respondeat superior to impose secondary liability on a veterinarian’s business
form. However, in Midway’s brief supporting their motion to dismiss they acknowledge
that a corporation may be sued under a respondeat superior theory of liability and that the
corporation may be vicariously liable when one or more of its principals are found liable.
We find that a veterinary practice is not markedly different than other business entities
8. and the fact that it does not practice veterinary medicine is immaterial. See Reed v.
Vickery, S.D.Ohio No. 2:09-cv-91, 2009 WL 3276648,*4 (Oct. 9, 2009).
{¶ 23} Further, owners’ complaint names unknown defendants as employees or
agents of defendant Midway Animal Hospital. Such claims have yet to be developed
during the course of discovery.
{¶ 24} Reviewing the complaint in a light most favorable to owners, we cannot
conclude “beyond doubt” that appellants’ failed to present a viable negligence claim
against appellee Midway and the court erred in dismissing the claims under Civ.R.
12(B)(6).
{¶ 25} While owners’ negligence claim remains, their breach of contract and
bailment claims asserted against appellee Midway were properly dismissed as they are
duplicative and subsumed under the theory of veterinary negligence. See Kaiser, 3d Dist.
Union No. 14-20-14, 2021-Ohio-887, at ¶ 13 (fraudulent concealment claim subsumed as
rooted in veterinary negligence); Chilton-Clark v. Fishel, 10th Dist. Franklin No. 16AP-
76, 2016-Ohio-7135, ¶ 8-10 (claims of breach of contract and breach of fiduciary duty
fall within the purview of professional malpractice); Rosen v. Lax, 9th Dist. Summit No.
27367, 2016-Ohio-182, ¶ 16 (duplicative claims are subsumed within the legal
malpractice claim).
D. Fiduciary Duty
{¶ 26} Owners next argue that the trial court erred in dismissing their breach of
fiduciary duty claim. Though they acknowledge that such a duty has yet to be recognized
9. in Ohio courts, they contend that due to fundamental differences in the care of animals
versus other types of personal property, a breach of the duty between an animal care
provider and pet owner is a viable claim. Midway asserts that a veterinarian has only a
business, not fiduciary, relationship with a pet owner.
{¶ 27} A “fiduciary” has been defined as a person having a duty, created by the
person’s undertaking, to act primarily for the benefit of another in matters connected with
the undertaking. STE Investments, LLC v. Macprep, Ltd., 6th Dist. Ottawa No. OT-21-
036, 2022-Ohio-2614, ¶ 31, quoting O’Loughlin v. Ottawa Street Condominium Assn.,
6th Dist. Lucas No. L-16-1128, 2018-Ohio-327, ¶ 32.
{¶ 28} In order to establish a breach of fiduciary duty a claimant must establish
“the existence of a fiduciary duty, breach of that duty, and injury proximately caused by
the breach.” Newcomer v. Natl. City Bank, 2014-Ohio-3619, 19 N.E.3d 492, ¶ 9 (6th
Dist.), citing Strock v. Pressnell, 38 Ohio St.3d 207, 216, 527 N.E.2d 1235 (1988).
{¶ 29} Appellants argue that a determination of whether they had set forth a
cognizable breach of fiduciary duty claim, required that the trial court analyze the
specific facts of the case, accounting for the fundamentally different nature of companion
animals from other types of personal property. Appellants claim that such analysis
necessarily includes an examination of animal cruelty laws and statutes regulating the
practice of veterinary medicine.
{¶ 30} Owners’ claim fails because Ohio has not recognized a fiduciary
relationship between a veterinarian and the pet owner. While a veterinarian is hired by
10. the pet owner, medical care is directed only to the pet which is considered personal
property. Further, because veterinary practice and licensing is statutorily regulated, a
veterinarian has an interest in complying with state licensing strictures; such interest may
be in direct conflict with the wishes of the pet owner. Accordingly, we find that the
fiduciary duty claim fails as a matter of law.
IV. Conclusion
{¶ 31} Based on the foregoing, the Bowling Green Municipal Court’s judgment
dismissing owners’ complaint is reversed, in part. The veterinary negligence claims,
including the punitive damages’ request, against all named defendants may proceed. The
judgment is affirmed in all other respects and the matter is remanded for further
proceedings. Pursuant to App.R. 24, appellees are ordered to pay the costs of this appeal.
Judgment affirmed, in part, reversed, in part, and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Charles E. Sulek, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
11.