429 N.E.2d 450 | Ohio Ct. App. | 1980
Lead Opinion
This cause came on to be heard upon an appeal from the Court of Common Pleas of Hamilton County.
This appeal is brought by plaintiffs-appellants, Corrine Jean Rowe and Lee Rowe, following the granting of summary judgment to the defendant-appellee in the court below.
Appellant Corrine Jean Rowe was a patient of defendant-appellee, a physician. That relationship terminated on March 11, 1976. On August 11, 1976, the attorney representing appellants sent a letter to appellee stating the following:
"Dear Dr. Bliss: *248
"This office has been retained by Lee and Corrine Rowe with regard to treatment rendered to Corrine Rowe by you in February and thereafter of this year, * * *.
"As a result of that treatment, Mrs. Rowe has experienced numerous problems, and you may regard this letter as formal notice of a claim against you therefor.
"Please forward this letter to your professional insurance carrier. Any and all correspondence regarding this matter should be directed to this office.
"Very truly yours,
"DOGGETT WAIS
"BY: Robert M. McEvilley"
A second letter was sent on February 28, 1977, with this statement:
"Dear Dr. Bliss:
"Pursuant to amended Ohio Revised Code Section
"Very truly yours,
"DOGGETT WAIS
"By: Robert M. McEvilley"
Appellants filed a complaint against appellee on August 25, 1977. On September 22, 1978, appellee filed a motion for summary judgment, maintaining the claim was barred by the statute of limitations of R. C.
"The Court erred in its interpretation of formal notice pursuant to Ohio Revised Code §
R. C.
"An action for * * * malpractice against a physician * * * shall be brought within one year after the cause thereof accrued, * * *.
"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 *249 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."
The court below found that the letter of August 11, 1976 constituted written notice that appellants were "presently considering bringing an action" against appellee under R. C.
Appellants maintain that the first letter notified appellee only that appellants were asserting a claim against him and that all correspondence was to be forwarded to their retained counsel. They insist it was not until the second letter, dated February 28, 1977, that appellants gave notice that they were "presently considering bringing an action" to enforce that claim. The February 28th letter, they argue, then extended the limit for 180 days, making the filing of their complaint on August 25, 1977, within the limit of R. C.
The purpose of statutes of limitation is "* * * to encourage diligence in the enforcement of demands * * *." 34 Ohio Jurisprudence 2d 487-488, Limitation of Actions, Section 3. However, they are remedial in nature and are to be given a liberal construction to permit the deciding of cases upon their merits, indulging every reasonable presumption and resolving all doubts in favor of giving, rather than denying, the plaintiff an opportunity to litigate. Draher v. Walters (1935),
Applying these principles to the case sub judice, we hold that appellants' letter to appellee, dated August 11, 1976, did not constitute the written notice contemplated by R. C.
In order to invoke the benefit of the possible 180-day extension of R. C.
The term "medical claim" is defined in R. C.
"`Medical claim' means any claim asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person."
Appellee argues that, through this definition, the legislature intended the terms "claim" and "action" to be synonymous; consequently, when the August 11th letter notified appellee of a claim, appellants were notifying appellee of an action. We see no basis for this conclusion. Although R. C.
Although related, the terms "claim" and "action" each have a different significance: the former, meaning asserted right; the latter, meaning legal enforcement of that right. The word "claim" is defined, in part, thusly: "To demand as one's own oras one's right; to assert; to urge; to insist. Cause of action. * * *" (Emphasis added.) Black's Law Dictionary (5 Ed. 1979), at 224. An "action" is defined, in pertinent part:
"Term in its usual legal sense means a suit brought in a court * * *. The legal and formal demand of one's right from another person or party made and insisted on in a court ofjustice. An ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. * * *" (Emphasis added.) Black's,supra, at 26.
And, more importantly, "action" is defined by R. C.
"An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decree,by which a party prosecutes another for the redress of a legal wrong, enforcement of a legal right, or the punishment of a public offense." (Emphasis added.)
Applying these definitions to appellants' August 11th letter, it is clear that appellee was notified of a "claim" resulting from treatment rendered by him to one of the appellants, Corrine Rowe. This meets only a part of the requirements of R. C.
To read into the August 11th letter anything other than notification of a claim and that all correspondence was to be sent to appellants' retained counsel would be to subject numerous such letters to court scrutiny. Appellee suggests that a disclaimer would have avoided the unwanted interpretation, but we do not read the statute or the letter as being so ambiguous as to require such.
The statute clearly requires the individual to give notice that an action is presently being considered and that the action relates to professional services provided to that individual. The letter of August 11th falls short of those requirements. Since the letter of February 28, 1977, clearly did meet the requirements of R. C.
It is the order of this court that the judgment or final order herein appealed from be, and the same hereby is, reversed and the cause is remanded for further proceedings according to law.
Judgment reversed andcause remanded.
KEEFE, J., concurs.
PALMER, P. J., concurs in the judgment only.
Concurrence Opinion
I reach the same result as my *252
brothers, and would reverse the judgment below; but, I would do so on rather substantially different grounds than those adopted by the majority. Thus, the majority concludes that because the August 11, 1976 letter does not use the phraseology of the statute, viz., that the injured party "is presently considering bringing an action" against the physician, it was insufficient to invoke the statutory extension, and was not, therefore, a "written notice" within the meaning of R. C.
This conclusion proceeds from a distinction drawn by the majority between the words used by Attorney McEvilley in his letter of August 11, 19761 — the relevant portion of which recites that, "[a]s a result of that treatment, Mrs. Rowe has experienced numerous problems, and you may regard this letter as formal notice of a claim against you therefor" — and the requirement of the second paragraph of R. C.
With respect, I find the distinction to be artificial and one upon which I am unwilling to predicate a decision. To be sure, the concept of a "claim" is not always perfectly interchangeable with the concept of an "action"; and, while every action presupposes the existence of a claim, there are claims which, for one reason or another, may not mature into an action by the filing of a complaint. Phrased another way, the majority simply draws a distinction between a right (claim) and a remedy (action). While I do not quarrel with the semantic point, I do not see its pertinence in discussing R. C.
The expression of this concept which seems to me to be embodied in the notice provisions of R. C.
Moreover, I believe my reading of the requirements of R. C.
Nevertheless, I agree that the judgment of the trial court must be reversed. I reach this conclusion, not because thelanguage of the August 11th letter was inadequate to invoke the delay, but because the letter itself was a nullity, having no legal effect or significance. It will be recalled that the instant cause of action accrued on March 11, 1976. The letter of August 11, 1976, was, therefore, sent a bare five months after the action accrued. To give this letter any legal significance as a written notice of extension under R. C.
"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 onehundred eighty days after that notice is given." (Emphasis added.)
Here, 180 days after the August 11th notice was given would have been February 7, 1977, a full month short of the regular limitation period of one year. Such a result would be an absurdity, not to be considered as within the contemplation of the legislature. Obviously, any written notice, to have any effect under R. C.
If a response is made to my argument that the August 11th letter, being infirm only in its untimeliness and not in its phraseology, nevertheless exhausted the single opportunity of the claimant to avail himself of his right to an extension of time, I would answer that this result seems to me unduly harsh and unnecessary. If, as I believe, the August 11th letter, given during the first six months of the one-year period, was a nullity, having no effect of either extending or reducing the limitation period, then it should serve as no impediment to a later and timely written notice. Since such a later and timely written notice was here given on February 28, 1977, I agree with my brothers that the judgment below should be reversed.
