Edens v. Barberton Area Family Practice Center

• Decision Date: 14 June 1989
• Docket Number: No. 88-1081,88-1081
• Citation: 539 N.E.2d 1124,43 Ohio St.3d 176
• Parties: EDENS, Appellee, v. BARBERTON AREA FAMILY PRACTICE CENTER et al., Appellants.
• Court: Ohio Supreme Court

Page 176

43 Ohio St.3d 176

539 N.E.2d 1124

EDENS, Appellee, v. BARBERTON AREA FAMILY PRACTICE CENTER et al., Appellants.

No. 88-1081.

Supreme Court of Ohio.

Submitted April 12, 1989.

Decided June 14, 1989.

Syllabus by the Court

Where a statute such as R.C. 2305.11(B) is silent as to how notice is to be effectuated, written notice will be deemed to have been given when received. Therefore, under R.C. 2305.11(B), the one-hundred-eighty-day period commences to run from the date the notice is received and not the date it is mailed.

Larry E. Edens, plaintiff-appellee, sustained injuries in an automobile accident which occurred on January 3, 1986. Later that same day, appellee admitted himself to Barberton Citizens Hospital ("hospital"), a defendant-appellant herein, and came under the care of Barberton Area Family Practice Center ("practice center") and Joseph D. Stokes, Jr., M.D. ("Stokes"), also defendants-appellants herein.

Appellee filed a complaint against appellants on July 29, 1987, alleging that during their treatment of him, appellants failed to properly diagnose his injuries. Prior to the filing of his complaint, appellee on January 29, 1987 had mailed to appellants a one-hundred-eighty-day letter pursuant to R.C. 2305.11(B) advising them that he was considering bringing a medical malpractice claim against them. This notice was received by the practice center and Stokes on January 30, 1987 and by the hospital on February 2, 1987.

Appellants moved for summary judgment, contending that the complaint was untimely. Specifically, appellants argued that the July 29, 1987 complaint was filed more than one hundred eighty days after written notice was mailed on January 29, 1987. However, appellee countered that notice was not actually given on January 29, 1987. Instead he argued that notice was given only when actually received by the practice center and Stokes on January 30, 1987, and by the hospital on February 2, 1987.

The trial court sustained appellants' motion for summary judgment. Appellee successfully appealed this decision to the court of appeals which reversed the trial court. The court of appeals held that notice was effective when received, thus rendering the complaint of July 29, 1987 timely. Finding its decision to be in conflict with the decision of the Court of Appeals for Portage County in Hughes v. Robinson Memorial Portage Cty. Hospital (1984), 16 Ohio App.3d 80, 16 OBR 85, 474 N.E.2d 638, the court of appeals certified the record of the case to this court for review and final determination.

John L. Wolfe, Akron, for appellee.

Roetzel & Andress and Kenneth L. Wittenauer, Akron, for appellants.

ALICE ROBIE RESNICK, Justice.

R.C. 2305.11(B)(1) provides that a medical malpractice claim must be brought within one year after the cause of action accrued. However, if prior to the expiration of the one-year statute of limitations, a claimant gives written notice to a potential defendant that he is considering bringing an action based on the alleged claim, then the claimant has one hundred eighty days after such notice is given to commence his action. R.C. 2305.11(B)(1) reads as follows:

" * * * An action upon a medical, dental, optometric, or chiropractic claim shall be commenced within one year after the action accrued, except that, if prior to the expiration of that one-year period, a claimant who allegedly possesses a medical, dental, optometric, or chiropractic claim gives to the person who is the subject of that claim written notice that the claimant is considering bringing an action upon the claim, that action may be commenced against the person notified at any time within one hundred eighty days after the notice is so given." (Emphasis added.)

Hence, R.C. 2305.11(B) affords a party the possibility of extending the one-year statute of limitations for a medical, dental, optometric or chiropractic claim. The purpose of this statute is to decrease the likelihood of frivolous medical malpractice claims by allowing parties and their attorneys additional time to investigate a potential claim which is brought to their attention shortly before the one-year statute of limitations expires. See Glenboski v. St. Alexis Hospital (1979), 65 Ohio App.2d 165, 168, 19 O.O.3d 122, 124, 417 N.E.2d 108, 111; Recent Cases, Practice and Procedure--Statute of Limitations--Medical Malpractice (1981), 10 Cap.U.L.Rev. 909, 910; Notes, Ohio's Statute of Limitations for Medical Malpractice (1977), 38 Ohio St.L.J. 125, 140-141; Ripps, The Ohio Medical Malpractice Statute: An Analysis (1977), 4 Ohio N.U.L.Rev. 24, 27.

R.C. 2305.11(B) does not toll the one-year statute of limitations by one hundred eighty days. Instead it is an exception to the one-year limitations period by allowing a claimant to bring an action within one hundred eighty days of giving notice pursuant to R.C. 2305.11(B). Once such notice is given, the claimant in most instances will have one hundred eighty days from the notice date to commence the action. If an R.C. 2305.11(B) notice is given one hundred eighty days or more prior to the end of the one-year statute of limitations period, then the claimant has only one year from the accrual date of the cause of action in which to bring the claim. If a one-hundred-eighty-day notice is not given, then, of course, the one-year statute of limitations controls the filing of the complaint. See Glenboski, supra; Hughes, supra.

In the instant case, it appears that appellants' treatment of appellee continued through February 18, 1986. Thus, appellee would have had one year from this date in which to commence his action. However, because appellee prior to the expiration of the one-year limitations period gave written notice to appellants that he was considering bringing an action upon his alleged malpractice claim, he had one hundred eighty days from the date he gave written notice in which to commence the action.

The parties to this action disagree as to when appellee actually "gave" notice. Appellants argue that notice is given when it is mailed. Appellee on the other hand contends that notice is given when received. Thus the precise issue before this court is whether notice pursuant to R.C. 2305.11(B) is effective on the date it is mailed or on the date it is received.

R.C. 2305.11(B) has not been uniformly interpreted by the courts of appeals in this state. In Hughes, supra, the court held that notice is given under R.C. 2305.11(B) when a plaintiff mails the one-hundred-eighty-day notice. However, the date notice was actually recieved was deemed to be the effective date in both Lambert v. Sang Woo Ha (App.1979), 16 O.O.3d 91, and Johnson v. St. Lukes's Hospital (1981), 2 Ohio App.3d 427, 2 OBR 521, 442 N.E.2d 768.

There are strong policy reasons behind designating the date of mailing as the effective notice date. If the mail date is chosen, it is a date certain since it would be the date plaintiff mails the notice, and not the receipt date, over which the plaintiff has no control. Gingerich v. Pokorny (1977), 50 Ohio Misc. 1, 2, 4 O.O.3d 32, 361 N.E.2d 1098, 1099. Moreover, by choosing the mail date as the effective date " * * * abnormalities and variances in postal delivery will not normally be permitted to extinguish a plaintiff's claim or unnecessarily extend it." Hughes, supra, 16 Ohio App.3d at 84, 16 OBR at 89, 474 N.E.2d at 642. It can also be argued that if the General Assembly intended the statute to mean notice is effective on the receipt date, it would have used "receive" instead of "give." See id.; 10 Cap.U.L.Rev., supra, at 914-915.

However, in R.C. 2305.11(B), the

General Assembly does not prescribe the manner or form of giving notice but instead simply states that a claimant should give written notice. This court has held that "[w]here a statute requires notice of a proceeding, but is silent concerning its form or manner of service, actual notice will alone satisfy such requirement." Moore v. Given (1884), 39 Ohio St. 661, paragraph two of the syllabus. In State, ex rel. Peake, v. Bd. of Edn. (1975), 44 Ohio St.2d 119, 73 O.O.2d 437, 339 N.E.2d 249, this court affirmed the holding in Moore, supra. In Peake, supra, notice by a school board regarding a teacher's non-employment was mailed on April 29, 1974, but was not received by the teacher until May 2, 1974. Pursuant to R.C. 3319.11, notice by a school board not to reemploy a teacher at the expiration of a limited contract must be given on or before April 30 of the school year preceding termination. R.C. 3319.11, like R.C. 2305.11(B), does not provide the manner in which notice is to be given. Accordingly, this court determined, pursuant to the holding in Moore, supra, that in such circumstances, actual notice controls: "* * * While R.C. 3319.11 requires written notice, it does not specify the manner or mode in which it must be served. Under this circumstance, Ohio has long followed the rule set forth in the second paragraph of the syllabus in Moore v. Given * * * [supra]." Peake, supra, at 122, 73 O.O.2d at 438, 339 N.E.2d at 251. Thus we concluded that the school board's notice was untimely. Id.

In Castellano v. Kosydar (1975), 42 Ohio St.2d 107, 71 O.O.2d 77, 326 N.E.2d 686, we distinguished statutes in which a manner of providing notice is given from those in which such manner is not prescribed. The statute at issue in Castellano stated that notice could be served personally or by registered or certified mail. We noted that this statute was different from the type addressed in Moore, supra, which does not prescribe the manner of service. Because of this difference, Moore was not applicable and we held that although the taxpayers did not actually receive notice of the tax assessment, service was deemed effective when notice was delivered and properly receipted for by an appropriate person.

Several other jurisdictions concur that " * * * in the absence of custom, statute, or express contract, a notice sought to be served...