Johnson v. St. Luke's Hosp.

• Decision Date: 11 June 1981
• Citation: 2 Ohio App.3d 427,2 OBR 521,442 N.E.2d 768
• Parties: , 2 O.B.R. 521 JOHNSON, Appellant, v. ST. LUKE'S HOSPITAL, Appellee. *
• Court: Ohio Court of Appeals

Page 427

2 Ohio App.3d 427

442 N.E.2d 768, 2 O.B.R. 521

JOHNSON, Appellant, v. ST. LUKE'S HOSPITAL, Appellee. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

June 11, 1981.

Syllabus by the Court

1. Where more than one notice is sent pursuant to R.C. 2305.11 by a potential plaintiff in a medical malpractice action, only the first of those notices is of any legal effect. Once that plaintiff has sent his first notice, he has the choice of filing suit within either one hundred eighty days of the giving of the notice or within one year of the accrual of his cause of action.

2. Actual written notice as contemplated by R.C. 2305.11 does not occur when the notice is mailed but arises when the mail is received by the person to whom it is sent. (Lambert v. Sang Woo Ha (App.1979), 16 O.O.3d 91, approved and followed.)

Leonard Davis, Cleveland, for appellant.

Albert J. Rhoa, Cleveland, for appellee.

PATTON, Presiding Judge.

Plaintiff-appellant Vera Johnson was treated in the emergency room of defendant-appellee St. Luke's Hospital on June 14, 15 and 16, 1977. On December 6, 1977, St. Luke's received a letter from Mrs. Johnson dated December 1, 1977. In the letter, Mrs. Johnson advised St. Luke's that she was seeking damages for the injuries she sustained as the result of an improper injection administered in the hospital's emergency room. Mrs. Johnson took no further steps in pursuing her claim until June 1978. In a letter dated June 14, 1978 and received by St. Luke's on June 22, 1978, Mrs. Johnson again informed St. Luke's that she had sustained injuries as the result of the negligence of the hospital's employees.

On August 28, 1978, Mrs. Johnson filed a medical malpractice complaint against St. Luke's in the Court of Common Pleas of Cuyahoga County. St. Luke's timely answered and raised by way of its affirmative defense that the statute of limitations barred Mrs. Johnson's claim. Thereafter, St. Luke's moved for summary judgment on the basis that the statute of limitations had run. Its motion was granted, and it is from such adverse ruling that Mrs. Johnson has appealed.

I

In her first assignment of error, Mrs. Johnson states:

"The trial court erred in not requiring defendant to obtain leave of court before filing its proposed motion for summary judgment or in the alternative not requiring defendant to file the motion if leave to file was in fact given."

The record indicates that contrary to Mrs. Johnson's assertion, St. Luke's did, in fact, move for leave to file its motion for summary judgment and leave was granted.

Accordingly, the first assignment is overruled.

II

Mrs. Johnson's second assignment of error provides:

"In a malpractice action, deposit of the notice required in Ohio Revised Code Section 2305.11 in the mails within one year after the accrual of such action will extend the time necessary to bring said action for a period not to exceed 180 days from the date such notice is mailed."

The applicable statute of limitations in this case is R.C. 2305.11. It provides that an action for malpractice against a hospital must be brought within one year after the cause thereof accrues. This statute also provides:

"If a written notice, prior to the expiration of time contained in this division, is given to any person in a medical claim that an individual is presently considering bringing an action against that person relating to professional services provided to that individual, then an action by that individual against that person may be commenced at any time within one hundred eighty days after that notice is given."

Mrs. Johnson's claim accrued at the very latest on June 16, 1977, when the relationship between her and the hospital terminated. Wyler v. Tripi (1971), 25 Ohio St.2d 164, 267 N.E.2d 419 . Pursuant to R.C. 2305.11, she then had one year from that date to either file suit or send St. Luke's a notice of her intent to bring a claim. Mrs. Johnson maintains that by depositing her notice on June 14, 1978, she complied with the statute. Her contention is not well taken. The record reveals that Mrs. Johnson sent two notices to St. Luke's. The first was dated December 1, 1977 and was received by the hospital on December 6, 1977. The second was sent in June 1978. We find the December 1977 notice to be controlling and the June 1978 notice to be of no legal effect. R.C. 2305.11, by its very terms, provides for "a written notice" (emphasis added). Clearly, the statute does not contemplate the use of any more than one notice. A potential plaintiff cannot use this provision to send multiple notices to a prospective defendant in order to extend the statute of limitations. Once that plaintiff has sent his first notice, he has the choice of filing suit either within one hundred eighty days of the notice or within one year of the accrual of the action. Mrs. Johnson then had the option of commencing her suit within one year of the accrual of the action (by June 16, 1978) or within one hundred eighty days of the written notice (by June 5, 1978). ¹ She did neither. Accordingly, her claim is barred by R.C. 2305.11.

Even if the second notice was effective, Mrs. Johnson's claim would still be barred by the statute of limitations. As mentioned above, Mrs. Johnson's action accrued on June 16, 1977. She had one year to either file suit or give St. Luke's notice of her claim. Mrs. Johnson maintains that by mailing her notice on June 14, 1978, she complied with the statute. Her position would be well taken were we to hold that the giving of notice arises when the notice is placed in the United States mails. However, we adopt the position that the giving of notice by mail occurs when the mail is received by the person to whom it is sent. This view is in accord with Lambert v. Sang Woo Ha (App.1979), 16 O.O.3d 91. ² St. Luke's did not receive Mrs. Johnson's notice until June 22, 1978, and notice was not effective until that date. Insofar as R.C. 2305.11 required notice to be given within...