Woods v. Dutta

• Decision Date: 18 April 1997
• Docket Number: No. 96CA784,96CA784
• Citation: 119 Ohio App.3d 228,695 N.E.2d 18
• Parties: WOODS et al., Appellants, v. DUTTA et al., Appellees.
• Court: Ohio Court of Appeals

Page 228

119 Ohio App.3d 228

695 N.E.2d 18

WOODS et al., Appellants, v. DUTTA et al., Appellees.

No. 96CA784.

Court of Appeals of Ohio,

Fourth District, Jackson County.

Decided April 18, 1997.

Green & Lucks Co., L.P.A., and Jan M. Long, Circleville, for appellants.

Hammond Law Office, and Gary W. Hammond, Columbus, for appellee, Nirmal K. Dutta.

Jacobson, Maynard, Tuchsman & Kalur, Karen L. Clouse and Bobbie S. Morelan, Columbus, for appellee, Oak Hill Community Medical Center.

STEPHENSON, Presiding Judge.

This is an appeal from the May 17, 1996 judgment entry of the Court of Common Pleas of Jackson County, granting summary judgment against Jean A. and David Woods, plaintiffs below and appellants herein. The following errors are assigned for our review:

I. "The trial court erred when it awarded summary judgment in favor of appellees and against appellants when there was a genuine issue of material fact."

II. "The trial court erred when it gave greater preference to a regular U.S. mail letter as opposed to a certified mail letter sent pursuant to R.C. 2305.11(B)(1)."

The record reveals the following facts pertinent to this appeal. On October 20, 1993, appellant, Jean Woods, was admitted to appellee, Oak Hill Community Medical Center ("Oak Hill") for a cholecystectomy. Appellee, Nirmal K. Dutta, M.D., performed the procedure on the day of admission and discharged appellant six days later, on October 26, 1993. Following her release from the Oak Hill, appellant experienced severe nausea, vomiting, and abdominal distension and pain. As a result, appellant sought treatment at Holzer Hospital, where she was again hospitalized on November 8, 1993. A common hepatic duct perforation was discovered and was surgically repaired on November 9, 1993. Appellant was released from Holzer Hospital on December 4, 1993.

On September 19, 1994, appellants mailed R.C. 2305.11(B)(1) notices to both appellees, apprising them that appellant, Jean A. Woods, was considering bringing an action against them relating to their rendering of professional services. These notice letters were sent via regular mail. Neither appellee recorded the date of receipt. On September 27, 1994, appellants mailed a second set of R.C. 2305.11(B)(1) notices to appellees via certified mail. Return receipts reflect receipt of the second set of notices on September 29, 1994.

On March 27, 1995, appellants filed a medical negligence action against appellees in the Court of Common Pleas of Jackson County. Appellees moved for summary judgment pursuant to Civ.R. 56, arguing that appellants' claims are barred by the statute of limitations because the action was not commenced within one hundred eighty days of appellees' receipt of the September 19, 1994 notice letters. On April 19, 1996, the trial court issued decisions finding each appellee's motion well taken, and on May 17, 1996, summary judgment was entered against appellants. Appellants filed notice of the instant appeal on June 5, 1996, asserting the above-enumerated assignments of error. ¹

We will, for the sake of clarity, address appellants' assignments of error in reverse order, beginning with appellants' argument that the trial court erred in giving preference to the first set of one-hundred-eighty-day notices. The notices at issue were given pursuant to R.C. 2305.11(B)(1), which provides:

"[A]n action upon a medical * * * claim shall be commenced within one year after the cause of action accrues, except that, if prior to the expiration of that one-year period, a claimant who allegedly possesses a medical * * * 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."

At least two courts before us have been faced with resolving the issue of successive notices given pursuant to this section. In Johnson v. St. Luke's Hosp. (1981), 2 Ohio App.3d 427, 2 OBR 521, 442 N.E.2d 768, the plaintiff gave two notices, nearly six months apart. The Eighth District Court of Appeals held that the first notice controlled and that the subsequent notice was of no legal effect. In so holding, the court stated:

"R.C. 2305.11, by its very terms, provides for 'a written notice.' 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." (Emphasis sic.) Id. at 428, 2 OBR at 522, 442 N.E.2d at 770.

More recently, the Fifth District Court of Appeals addressed this issue, reaching a different conclusion. In Butler v. Pasley (1994), 95 Ohio App.3d 180, 642 N.E.2d 19, the plaintiff gave notice when more than one hundred eighty days remained in the original one-year statute of limitations period. A second notice was given just prior to the expiration of the one-year statutory period, and a complaint was filed approximately five months later. The trial court, relying on Johnson, found that the second notice had no effect and granted the defendant's motion to dismiss for failure to comply with the statute of limitations. On appeal, the Fifth District Court of Appeals reversed, holding that "where premature notice is sent which has no effect on the one-year statute of limitations, * * * a timely second written notice extends the statute of limitations one hundred eighty days from that second notice." ² Butler, 95 Ohio App.3d at 182, 642 N.E.2d at 20.

Very recently, in Leftwich v. Martelino (1997), 117 Ohio App.3d 405, 690 N.E.2d 932, this court discussed a premature filing under R.C. 2305.11(B)(1), as follows:

"[A]lthough R.C. 2305.11(B)(1) provides that the action may be commenced within the one-hundred-eighty-day period after the notice is given, we do not interpret this to mean that [appellant] was required to file her suit within this period if the statute of limitations would not yet have expired after the one hundred eighty days. We do not believe that the General Assembly intended the notice provision to limit the one-year statute of limitations period."

In Leftwich, we concluded only that a premature R.C. 2305.11(B)(1) notice does not operate to shorten the one-year statute of limitations. We did not, like Johnson and Butler, address the issue of multiple R.C. 2305.11(B)(1) notices.

In addressing the issue now, we first note that the one-hundred-eighty-day periods in the Leftwich and the initial Butler notices were wholly subsumed within the original one-year statute of limitations, ³ whereas in the instant case, the initial set of notices effectively extended the statute of limitations. Thus, neither Leftwich nor Butler supports a conclusion that appellants are entitled, in this case, to successive bites of the proverbial apple. Moreover, we note that while Butler distinguished Johnson on the basis of amended statutory language, see 95 Ohio App.3d at 182, 642 N.E.2d at 20, fn. 2, Butler still expressly limited its holding to instances of premature, ineffective first notices, implying that mature, effective notices would bar subsequent ones, amended language notwithstanding.

Furthermore, R.C. 2305.11(B)(1), as amended, provides "that action may be commenced against the person notified at any time within one hundred eighty days after the notice is * * * given." ⁴ (Emphasis added.) We believe that the language of the statute, as amended, evidences a legislative intent that a single, effective notice be given as opposed to multiple ones. ⁵

Finally, we reject appellants' assertion that the manner of service adopted by appellants affects in any way our resolution of this issue. We agree with appellants that certified mail would have been preferable to regular mail, for reasons made painfully clear herein. However, the trial court did not err in failing to "prefer" the later notices because they were served by certified mail. First, the statute does not specify that service of notice is to be accomplished by certified mail. Second, this court is not inclined to "prefer and accept" the second set of notices merely because proof of receipt is more readily available to appellants. Third, appellants chose the method of service, and it is appellants who must bear the risk if that method proves to be inadequate. Appellants could easily have overcome any difficulties engendered by their choice of regular mail service simply by filing their complaint within one hundred eighty days of the date of mailing. They did not do so.

Accordingly, the trial court did not err in "giving greater preference" to the September 19, 1994 notices. Appellants' second assignment of error is overruled.

Having concluded that the September 19, 1994 notices are controlling, we now turn to appellants' first assignment of error, in which appellants contend that the trial court erred in granting summary judgment. The court erred in granting summary judgment, appellants argue, because a genuine issue of material fact exists as to when the appellees received the September 19, 1994 R.C. 2305.11(B)(1) notices, and thus, as to whether appellants' complaint was timely filed.

We begin by noting that we review summary judgments de novo. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41, 654 N.E.2d 1327, 1328-1329; Doner v. Snapp (1994), 98 Ohio App.3d 597, 600, 649 N.E.2d 42, 43-44; Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, 641 N.E.2d 265, 271-272. We afford no deference to the trial court's decision, see Tardy v. Norfolk S. Corp. (1995), 103 Ohio App.3d 372, 379, 659 N.E.2d 817, 821; Oiler v. Willke (1994), 95 Ohio App.3d 404, 407, 642 N.E.2d 667, 669; Shepherd v....