Elaina M. Szwarga et al., Plaintiffs-Appellants, v. Riverside Methodist Hospital et al., Defendants-Appellees.
No. 13AP-648 (C.P.C. No. 11CVA-10-12893)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 6, 2014
2014-Ohio-4943
BROWN, J.
(REGULAR CALENDAR)
Rendered on November 6, 2014
John W. Allen & Associates, LPA, LLC, and Beth Allen Owens, for appellants.
Roetzel & Andress, LPA, Robert B. Graziano, and Michael R. Traven, for appellee Riverside Methodist Hospital.
Hammond Sewards & Williams, and Frederick A. Sewards, for appellee Raghuram Reddy, M.D.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} This is an appeal by plaintiffs-appellants, Elaina M. and David Szwarga, from an entry of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Riverside Methodist Hospital (individually “Riverside“), and Raghuram P. Reddy, M.D. (individually “Dr. Reddy“).
{¶ 2} On October 17, 2011, appellants filed a complaint against Riverside and Dr. Reddy (collectively “appellees“), as well as various John Doe corporations, physicians, and nurses. The complaint alleged that Dr. Reddy treated Elaina at Riverside on April 26, 2010, at which time the physician performed an endoscopic retrograde
{¶ 3} On December 13, 2012, Riverside filed a motion for summary judgment asserting that appellants had filed their complaint outside the applicable statute of limitations period. Specifically, Riverside argued that a purported notice letter served by appellants was defective and, thus, did not extend the period of limitations under
{¶ 4} By decision and entry filed May 23, 2013, the trial court granted summary judgment in favor of Riverside and Dr. Reddy. In its decision, the court held that the “purported ‘180-day letter’ in the instant matter fails to comport with
{¶ 5} On appeal, appellants set forth the following assignment of error for this court‘s review:
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY INCORRECTLY INTERPRETING APPELLANTS’ 180-DAY LETTER IN LIGHT OF
R.C. 2305.113(B)(1) .
{¶ 6} At issue on appeal is whether the trial court erred in granting summary judgment in favor of appellees on the basis that a purported notice letter sent by appellants to Riverside failed to comport with the requirements of
{¶ 7} Pursuant to
{¶ 8} In accordance with
{¶ 9}
If prior to the expiration of the one-year period specified in division (A) of this section, 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.1
{¶ 10} In order to be valid, “the one-hundred-eighty-day letter must comply with the requirements set forth in [
{¶ 11} In the instant case, attached to Riverside‘s motion for summary judgment was a copy of a letter, dated April 21, 2011, from appellants’ counsel to Riverside. The letter, pertaining to Elaina‘s hospital treatment at Riverside, states in relevant part:
Our office has been retained by Elaina M. Szwarga to represent her regarding the injury she sustained during an ERCP performed on April 26, 2010 at Riverside * * *. Mrs. Szwarga was admitted to Riverside * * * on April 21, 2010 for the birth of her daughter, who was born on April 22, 2010. On April 26, 2010, an ERCP was performed. Following this ERCP, Mrs. Szwarga had increased complications and pain. Later, on April 30, 2010, she underwent an operation wherein
it was discovered that there was a perforation of the lateral
My client is not interested in pursuing litigation and we will attempt to work with your insurance company to bring about a fair settlement within the next one hundred and eighty (180) days. If a fair settlement cannot be reached, we will have to file litigation to protect that statute. Please forward this letter to your insurance carrier.
{¶ 12} Riverside argued before the trial court that the above letter did not contain language required to extend the one-year statute of limitations period beyond April 26, 2011. Specifically, Riverside argued that appellants’ letter did not state that an action was presently being considered on the claim; rather, according to Riverside, the language in the letter suggested it was meant to invite settlement. In response, appellants argued in their memorandum contra that
{¶ 13} Appellants, in asserting that the trial court erred in granting summary judgment in favor of appellees, contend the letter at issue must be read as a whole to determine its purpose. According to appellants, while the letter indicates that their first intent was to settle the claim, it also made clear they were considering bringing a legal action.
{¶ 14} Several appellate courts, including this court, have addressed the issue of whether a plaintiff has complied with the statutory requirement of providing notice that he or she is considering filing a medical claim. In Josolowitz v. Grant/Riverside Methodist Hosp. Corp., 10th Dist. No. 99AP-1462 (June 29, 2000), this court found that a plaintiff-appellant‘s initial complaint served against a defendant-appellee physician did not serve as a valid (second) 180-day notice under former
{¶ 15} In DeTray v. Mt. Carmel Health, 10th Dist. No. 96APE08-1010 (Apr. 17, 1997), this court found that the plaintiffs’ letter to a physician, indicating that a law firm had been retained to represent the plaintiffs “in their claim for damages resulting from personal injuries sustained by Mr. DeTray as a result of your negligence while he was a patient at your hospital,” contained language sufficient to put the defendant hospital on notice that plaintiffs were considering bringing an action on a claim for purposes of the 180-day notice rule under former
{¶ 16} In Marshall, the Supreme Court of Ohio noted that former
{¶ 17} In Kline v. Felix, 81 Ohio App.3d 36, 38 (9th Dist.1991), the plaintiff‘s counsel sent a letter to the defendant-dentist, noting that plaintiff was represented by counsel, and giving “notice that Mr. Kline intends to file a dental claim against you within One Hundred Eighty (180) days from the date of this letter.” The letter further provided, however: “It is my hope that a lawsuit will not have to be filed. Instead, I will send a settlement brochure to your office. Upon your review of the settlement brochure, please contact me at your earliest convenience so that we can settle this matter expeditiously.” Id. The trial court granted summary judgment in favor of the defendant-dentist, finding that the letter did not extend the statute of limitations under
{¶ 18} It has been noted that, “when considering the sufficiency of a purported one-hundred-eighty-day notice, the emphasis in the inquiry should be placed on a determination of whether the defendant received adequate notice of the possibility of a malpractice suit.” DeTray citing Mendenhall v. Spyridon, 2d Dist. No. 13972 (Mar. 30, 1994). In the instant case, while appellants’ letter expresses a desire to avoid litigation, the language at issue further makes clear an intention to “file litigation” if a settlement cannot be reached. Specifically, the letter references the 180-day statutory time frame, i.e., the letter indicates a specific intent to file litigation within that time in order “to protect that statute.” As noted under the facts, the trial court determined that the cognizable event giving rise to the claim occurred on April 26, 2010. With respect to the accrual date, courts have considered the timing of purported notice letters as part of “objective circumstances” to be viewed in determining whether a letter “should be considered a notice letter.” Byard v. Vorys, 870 F.2d 657 (6th Cir.1989) (finding that first purported notice letter from plaintiffs’ counsel to physician, which “advised” physician he had been retained to pursue a claim and which was sent only six and one-half months after plaintiffs’ cause of action accrued, was only a letter of representation; the court deemed significant the fact that the letter would have only extended the running of the statute of limitations by two weeks, while further noting that, had the letter “provided a
{¶ 19} Appellants’ letter in this case informs Riverside that appellants retained counsel to represent them, that Elaina had sustained an injury during the ERCP performed at Riverside (i.e., that a potential claim existed), and that appellants would “have to file litigation” within 180 days if the claim was not resolved. Based on this court‘s de novo review, we conclude that the letter at issue was sufficient to provide appellees notice that appellants were “considering bringing an action” on a claim. Accordingly, finding that appellants’ April 21, 2011 letter complied with the requirements of
{¶ 20} Based on the foregoing, appellants’ single assignment of error is sustained, the judgment of the Franklin County Court of Common Pleas is reversed, and this matter is remanded to that court for further proceedings in accordance with law, consistent with this decision.
Judgment reversed and cause remanded.
DORRIAN and O‘GRADY, JJ., concur.
DORRIAN, J., concurring.
{¶ 21} I concur with the majority.
{¶ 22} Preferring not to pursue litigation but, rather, to settle a legitimate medical claim is reasonable. Potential litigants, plaintiffs and defendants, may at times be so inclined for reasons such as, inter alia, privacy, reputation, cost of litigation, or expediency. Furthermore, such preference is not necessarily inconsistent with providing notice that a claimant is considering bringing an action upon that claim. As noted by the
{¶ 23} In determining whether this letter otherwise constitutes a valid notice, I note the Supreme Court‘s emphasis on providing claimants additional time to investigate a potential claim. “The purpose of [
malpractice claimants with the maximum amount of time in which to investigate their claims.” (Emphasis added.) Id. at 525.
{¶ 24} The letter before us quotes directly from Mrs. Szwarga‘s hospital records and indicates that appellants’ counsel has already performed some due diligence regarding the viability of appellants’ claims. The letter concludes: “It is clear from the medical records that there was an injury caused to her bile duct during the [endoscopic retrograde cholangiopancreatography] performed by you on April 26, 2010.” This sentence indicates that appellants’ counsel has already made an initial determination that litigation is warranted. Thus, on its face, the letter suggests that appellants need not avail themselves of an extension of the statute of limitations under
Univ. of Cincinnati Hosp., 10th Dist. No. 02AP-1353, 2003-Ohio-6349, ¶ 57 (referring to medical negligence or malpractice cases, in particular, as complex).