Gingerich v. Pokorny, 76
| Decision Date | 08 March 1977 |
| Docket Number | No. 76,76 |
| Citation | 361 N.E.2d 1098,4 O.O.3d 32,50 Ohio Misc. 1 |
| Parties | , 4 O.O.3d 32 GINGERICH et al. v. POKORNY et al. P 496. |
| Court | Ohio Court of Common Pleas |
Jerome M. Ellerin, Cleveland, for plaintiffs.
Mario C. Ciano, Cleveland, for defendants.
R.C. 2305.11 tolls the one year statute of limitations in malpractice actions for 180 days '(i)f a written notice, prior to the expiration of * * * (one year), is given to any person in a medical malpractice case' to advise the future defendant of the malpractice claim. (Emphasis added.) The legislature has not defined the method of giving such notice and it is not clear whether actual receipt of such notice within one year, or depositing the notice in the mail on time, satisfies the requirements of 'giving notice.'
In this medical malpractice claim the alleged malpractice occurred on May 5, 1975. Plaintiff deposited his notice in the mail on May 4, 1976. Defendant received the letter on May 6, 1976, one day after the statute of limitations had run. Suit was filed on September 3, 1976, and the issue of whether plaintiff's notice has effectively tolled the statute is before the court on defendant's motion for summary judgment as a matter of first impression in this state.
Defendant urges upon the court a strict construction of the statute, similar to that given the Federal Tort Claims Act in Steele v. United States (S.D.Cal.1975), 390 F.Supp. 1109. However, that statute speaks of presentment of a claim in writing rather than of giving notice, and apparently the holding in Steele is not universally followed in other Circuits.
In any event, the better view would be to construe liberally, and in favor of survival of an action known at common law, any limitation imposed on such action by statute. Such has been the trend in Ohio. Meekison v. Groschner (1950), 153 Ohio St. 301, 309, 91 N.E.2d 680.
We cannot speculate that the legislature did not contemplate the use of the mails as a method for giving notice. A person using the mails has control over the deposit of his communication, but not over the receipt thereof. Modern and accepted ways of communicating would appear to support the view that notice is given upon deposit in the mail of a notice properly addressed to the recipient.
For these reasons, it is the holding of this court that the notice provision of R.C. 2305.11 is satisfied in medical malpractice cases upon deposit of the proper notice in the United States mails within the...
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Edens v. Barberton Area Family Practice Center
...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 de......
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Anderson v. Bickmore, 78-559
...commenced the action 182 days after the defendant received notice and 183 days after notice was sent. See Gingerich v. Pokorny (Geauga Co.C.P. 1977), 50 Ohio Misc. 1, 361 N.E.2d 1098 (notice is "given" when properly mailed). But under the second alternative, the plaintiff would not be barre......
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Hughes v. George F. & Mary A. Robinson Memorial Portage County Hosp.
...was in error. The issue is one of first impression in this court and has never been decided by the Supreme Court. Gingerich v. Pokorney (1977), 50 Ohio Misc. 1, 361 N.E.2d 1098 , was the first case to interpret the statute and held that notice should be considered "given" when mailed so tha......
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David G. Morris v. Grandview Hospital
...of the phrase "notice given" has resulted in two different opinions as to the meaning to be accorded the statute. In Gingerich v. Pokorny, 50 Ohio Misc. 1, 4 Ohio 3d 32 (1977), Common Pleas Court of Geauga County, the plaintiff deposited his notice in the mail on May 4, 1976. Defendant rece......