Smith v. GillSmith v. Gill
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-646283
BEFORE: Celebrezze, J., Boyle, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: August 26, 2010
Jack Morrison, Jr.
Vicki L. Desantis
Thomas R. Houlihan
Amer Cunningham Co., L.P.A.
159 South Main Street
Key Building - Suite 1000
Akron, Ohio 44308-1322
ATTORNEYS FOR APPELLEES
For Darrell Gill, D.O.
Ernest W. Auciello, Jr.
Kathleen A. Atkinson
Susan M. Audey
Tucker Ellis & West, L.L.P.
1150 Huntington Building
925 Euclid Avenue
Cleveland, Ohio 44115-1414
For Doctors Health Corp.
Brant Poling
Poling & Petrello
1100 Superior Avenue
Suite 1110
Cleveland, Ohio 44114
{¶ 1} Plaintiff-appellant, Glen Smith, appeals the trial court‘s decision granting summary judgment in favor of defendant-appellee, Darrell Gill, D.O. Based on our review of the record and pertinent case law, we affirm.
{¶ 2} On July 17, 2006, appellant was transported to Doctors Hospital of Nelsonville (“Doctors“) complaining of chest pains he believed to be a heart attack. He requested and was eventually transferred to Riverside Methodist Hospital (“Riverside“) in Columbus, Ohio, on July 18, 2006.
{¶ 3} On July 6, 2007, appellant sent letters to Dr. Gill, Doctors, and National Emergency Services (“NES“) via certified mail notifying them that he intended to pursue a medical malpractice claim as a result of the treatment he received at Doctors. These letters, sent pursuant to
{¶ 4} On January 4, 2008, appellant filed a complaint in the common pleas court for medical malpractice and named as defendants Dr. Gill,
{¶ 5} On September 10, 2008, Dr. Gill filed a motion for summary judgment claiming that he never received the 180-day letter that was sent to his home, and therefore the statute of limitations was not extended. Dr. Gill relied on this to argue that appellant failed to file his complaint within the one-year statute of limitations, and thus the suit should be dismissed as it pertained to Dr. Gill. This motion was accompanied by Dr. Gill‘s affidavit, which merely reiterated that he never received a 180-day letter at his home and that the only 180-day letter he saw was the one sent to NES that was shown to him by his attorney.
{¶ 6} Appellant filed a brief in opposition to Dr. Gill‘s motion for summary judgment, wherein he provided proof that Dr. Gill had signed for the 180-day letter on July 21, 2007. Appellant relied on this evidence, the 180-day letters sent to NES and Doctors, and a letter from the vice president of Western Litigation, Inc. to argue that Dr. Gill had notice of the lawsuit and that the statute of limitations had been extended. The letter from Western Litigation was dated July 17, 2007 and informed appellant‘s counsel that
{¶ 7} Dr. Gill responded to appellant‘s brief in opposition by redacting the two paragraphs in his affidavit that indicated that he never received a 180-day letter. Dr. Gill‘s reply brief then argued that the fact that he signed for a 180-day letter on July 21, 2007 is irrelevant because the statute of limitations had already expired. The trial court denied Dr. Gill‘s motion for summary judgment stating that it had no evidence of when the statute of limitations began to run on appellant‘s claim and thus the cause of action could not be disposed of by a summary judgment motion.
{¶ 8} Appellant was deposed on March 25, 2009. During his deposition, appellant admitted that he threatened to sue Dr. Gill before being transferred to Riverside. He specifically stated, “when I left I told Dr. Gill that I was going to pursue a claim of medical negligence against him, yes.” Based on this testimony, Dr. Gill filed a motion for reconsideration of the trial court‘s ruling on his previous summary judgment motion. In his motion, Dr. Gill argued that because of appellant‘s admission, the statute of limitations began to run on July 18, 2006, and thus the statute of limitations had already expired when Dr. Gill received the 180-day letter on July 21, 2007.
Law and Analysis
{¶ 10} This court reviews the lower court‘s granting of summary judgment de novo. Brown v. Scioto Cty. Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153. A de novo standard of review affords no deference to the trial court‘s decision, and we independently review the record. Gilchrist v. Gonsor, Cuyahoga App. No. 88609, 2007-Ohio-3903. Before summary judgment may be granted, the court must determine that there is no genuine issue of material fact, that the moving party is entitled to judgment as a matter of law, and that viewing the evidence in a light most favorable to the nonmoving party, reasonable minds can reach one conclusion in favor of the moving party.
{¶ 12} Medical malpractice claims are subject to a one-year statute of limitations.
{¶ 13} Our research indicates a lack of case law analyzing
{¶ 14}
{¶ 15} There is no dispute that Dr. Gill did not receive the 180-day letter that was sent to his personal address until after the statute of limitations had already expired. Thus, in order for the statute of limitations to be extended, the 180-day letters sent to Doctors or NES must have been sufficient to impart notice upon Dr. Gill that appellant was considering filing a medical malpractice action against him. Appellant argues that Dr. Gill was an agent of Doctors and NES, and the 180-day letters received by them were, in fact, sufficient to extend the statute of limitations.
{¶ 16} The letter sent to Doctors was addressed to Dr. Gill, in care of the Department of Emergency Medicine, Doctors Hospital of Nelsonville; however, the letter was signed for by J. Blair. This is similar to Fulton, supra, in which numerous 180-day letters were mailed to the potential defendant, but were signed for by a third party named Evelyn Bilger. Fulton at ¶13. The court stated, “This certainly raises the issue of who is Bilger and what is her relationship to appellees and Fisher-Titus. Neither party submitted any evidence on this issue. Nevertheless, it is not a genuine issue of material fact. This court and others have held that where actual receipt of a notice is required, receipt by the intended recipient‘s agent will not suffice. * * * Appellants have not asserted why Edens and its progeny do not apply
{¶ 17} There is no evidence in this case that Dr. Gill was an employee of Doctors. In fact, Dr. Gill testified in his deposition that he is an independent contractor and that he does not maintain an office at Doctors. Nevertheless, Fulton involved a situation where a 180-day letter was sent to the defendant‘s employer and was signed for by a third party. The court in Fulton unequivocally held that the potential defendant must receive actual notice of the possible lawsuit. In this case, Dr. Gill presented evidence, by way of the return receipt signed by J. Blair, that he did not receive the 180-day letter that was sent to Doctors. As such, the burden then shifted to appellant to demonstrate that Dr. Gill did, in fact, receive this letter. Appellant did not meet this burden, and thus we must agree with the trial court that the letter sent to Doctors did not extend the statute of limitations in this case.
{¶ 18} The letter sent to NES was addressed to NES Healthcare Group, care of Administrator. The letter mentioned appellant‘s name and stated that appellant was considering filing a medical claim against NES based on
{¶ 19} Appellant relies on the letter sent to his counsel by Western Litigation, Inc., which acknowledged NES‘s receipt of the 180-day letter and stated that it had “been retained to investigate [appellant]‘s claim by the professional liability insurer for Dr. Darrell Gill, D.O.” This letter is evidence that NES and Dr. Gill‘s malpractice carrier had actual notice of the suit, but it is not evidence that Dr. Gill had actual notice. Dr. Gill testified in his deposition that NES maintained his malpractice insurance; therefore, it
Conclusion
{¶ 20} The material facts show that Dr. Gill did not receive the 180-day letter sent to his personal address until after the statute of limitations had already expired. The letter sent to Doctors was insufficient to extend the statute of limitations because the letter was signed for by a third party and there is no evidence that Dr. Gill actually received it. The letter sent to NES was insufficient to extend the statute of limitations because it did not name Dr. Gill as a potential defendant, and thus it did not comply with
Judgment affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR