[This opinion has been published in Ohio Official Reports at
87 Ohio St.3d 522.]
MARSHALL, APPELLEE, v. ORTEGA, APPELLANT.
[Cite as Marshall v. Ortega, 2000-Ohio-481.]
Medical malpractice—Where party complies with R.C. 2305.11(B)(1) and sends
multiple written notices of intent to sue prior to the expiration of the one-year statute of limitations set forth in R.C. 2305.11(B)(1), the one-hundred-eighty-day period begins to run from the date the last notice is
received by the potential defendants.
Where a party complies with the requirements of R.C. 2305.11(B)(1) and sends
multiple written notices of intent to sue prior to the expiration of the one-year statute of limitations set forth in R.C. 2305.11(B)(1), the one-hundred-eighty-day period begins to run from the date the last notice is received by
the potential defendants. The statute of limitations for medical malpractice
will not bar prosecution of an action for malpractice if that action is
commenced within one hundred eighty days of the last notice.
(Nos. 98-2543 and 98-2610—Submitted October 12, 1999—Decided January 19,
2000.)
APPEAL from and CERTIFIED by the Court of Appeals for Cuyahoga County, No.
72096.
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{¶ 1} On April 12, 1994, defendant-appellant Dr. Bienvenido Ortega
performed a laminectomy and spinal fusion on plaintiff-appellee Gladys Marshall.
{¶ 2} On February 9, 1995, Marshall, through her attorney, sent Dr. Ortega
a letter informing him that she was contemplating bringing a medical malpractice
action against him. On March 9, 1995, Marshall’s attorney mailed a second letter
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to Ortega, which, unlike the first, explicitly claimed the benefit of R.C.
2305.11(B).1
{¶ 3} On September 1, 1995, Marshall filed a medical malpractice
complaint against Ortega. Marshall voluntarily dismissed the lawsuit on December
19, 1995, without prejudice.
{¶ 4} On January 19, 1996, Marshall refiled her lawsuit against Ortega.
Ortega moved for summary judgment, arguing that Marshall’s cause of action was
time-barred by R.C. 2305.11(B) because her complaint was not filed within one
hundred eighty days from the time the first written letter was given. The trial court
granted Ortega’s motion for summary judgment. The court of appeals reversed,
finding that multiple letters are permissible under R.C. 2305.11(B)(1). The court
concluded that the lawsuit was timely since it was brought within one hundred
eighty days from the time the second notice was given. The Eighth District Court
of Appeals found that its decision was in conflict with the decision of the Fourth
District Court of Appeals in Woods v. Dutta (1997), 119 Ohio App.3d 228,
695
N.E.2d 18, and entered an order certifying a conflict.
{¶ 5} The cause is now before this court upon the allowance of a
discretionary appeal and upon our determination that a conflict exists.
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Mondello & Levey, Scott I. Levey and Frank P. Giaimo, for appellee.
Weston, Hurd, Fallon, Paisley & Howley, L.L.P., Forrest A. Norman III and
John A. Albers, for appellant.
Lancione & Lancione, P.L.L., and John A. Lancione, urging affirmance for
amicus curiae, Ohio Academy of Trial Lawyers.
1. These letters were sent by appellee’s former counsel. Although the argument was made to the
lower courts that the first letter was merely a letter of representation, the court of appeals held that
the letter was a valid notice. Since that issue was not appealed to this court, and because the certified
question implies that two valid notices were given, we are assuming, without deciding the issue,
that the first letter was a valid notice.
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FRANCIS E. SWEENEY, SR., J.
{¶ 6} The issue certified for our review is: “Where a party timely files more
than one statutory notice of intent to sue in accordance with R.C. 2305.11(B)(1),
does the statute of limitations for medical malpractice bar prosecution of an action
for malpractice commenced within 180 days of the latest of these notices?” We
answer this question in the negative and affirm the decision of the court of appeals.
{¶ 7} Generally, a medical malpractice lawsuit must be brought within one
year after the cause of action accrues. R.C. 2305.11(B)(1). However, R.C.
2305.11(B)(1) also provides an exception to this rule by affording litigants the
opportunity to extend the one-year statute of limitations for an additional one
hundred eighty days from the time proper notice is given to potential defendants.
{¶ 8} R.C. 2305.11(B)(1) states:
“Subject to division (B)(2) of this section, an action upon a medical, dental,
optometric, or chiropractic claim shall be commenced within one year after the
cause of action accrued, except that, if prior to the expiration of that one-year
period, a claimant who allegedly possesses a medical, dental, optometric, or
chiropractic 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.”
{¶ 9} In this case, we are asked to decide the effect of sending multiple
statutory notices of intent to sue, more commonly referred to as one-hundred-eighty-day letters. Ortega contends that under R.C. 2305.11(B)(1), a claimant has
one opportunity to extend the period of limitations by notifying potential
defendants of a possible lawsuit. Ortega relies on Woods v. Dutta (1997), 119 Ohio
App.3d 228,
695 N.E.2d 18. In that case, the claimant sent two one-hundred-eighty-day letters to the potential defendants and filed her complaint within one
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hundred eighty days from receipt of the second letter. The Fourth District Court of
Appeals found that the second letter was without effect, calculated the one-hundred-eighty-day period from the time the first letter was received, and found
that the claimant’s cause of action was barred by the one-year statute of limitations.
In so holding, the court reasoned that the language of R.C. 2305.11(B) “evidences
a legislative intent that a single, effective notice be given as opposed to multiple
ones.” Id. at 232,
695 N.E.2d at 20. Under this rationale, Ortega maintains that
since Marshall did not commence her lawsuit within one hundred eighty days from
when the first one-hundred-eighty-day letter was received, Marshall’s cause of
action is time-barred by the one-year statute of limitations.
{¶ 10} Marshall, however, believes that Woods v. Dutta was wrongly
decided. Marshall maintains that R.C. 2305.11(B)(1) does not limit the number of
one-hundred-eighty-day letters that can extend the time limit. She argues that
where a claimant sends multiple one-hundred-eighty-day letters that are received
within the one-year statute of limitations, the last written notice is controlling for
purposes of extending the statute of limitations for one hundred eighty days. We
agree with appellee and do not find the reasoning employed by the Fourth District
in Woods v. Dutta, supra, persuasive.
{¶ 11} Prior to its amendment in 1987, former R.C. 2305.11(A) referred to
“a” written notice. 141 Ohio Laws, Part II, 3228-3229. Thus, the court in Johnson
v. St. Luke’s Hosp. (1981), 2 Ohio App.3d 427, 2 OBR 521,
442 N.E.2d 768,
correctly held that former R.C. 2305.11(A) provided for the use of only one notice,
and that where more than one notice was sent, only the first notice had any legal
effect. R.C. 2305.11(B), however, is not as restrictive as its predecessor. R.C.
2305.11(B)(1) now provides that “written notice” can extend the time limit. Thus,
in amending the statute, the General Assembly deleted the word “a” (referring to
“a written notice”) from R.C. 2305.11. We believe that this evidences the
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legislative intent that under the current version of R.C. 2305.11 more than one
notice can be effective in extending the time limit.
{¶ 12} This interpretation is supported by sound policy considerations as
well. R.C. 2305.11(B)(1) was enacted in order “to decrease the likelihood of
frivolous medical malpractice claims by allowing parties and their attorneys
additional time to investigate a potential claim which is brought to their attention
shortly before the one-year statute of limitations expires.” Edens v. Barberton Area
Family Practice Ctr. (1989), 43 Ohio St.3d 176, 177-178,
539 N.E.2d 1124, 1126.
To effectuate this purpose, claimants are afforded the opportunity to extend the one-year statute of limitations for one hundred eighty days. In Edens,
id. at 180,
539
N.E.2d at 1128, we held that “where a statute such as R.C. 2305.11(B) is silent as
to how notice is to be effectuated, written notice will be deemed to have been given
when received.” Thus, for purposes of calculating the one-hundred-eighty-day
period, a claimant will have an additional one hundred eighty days from the time
the notice is received by a potential defendant.
{¶ 13} Ortega argues that a claimant should not be able to send multiple
one-hundred-eighty-day letters to repeatedly extend the statute of limitations. But
R.C. 2305.11(B)(1) does not afford a claimant the right to endlessly extend the
statute of limitations. Instead, R.C. 2305.11(B)(1) affords a claimant the right to
extend the statute of limitations for a maximum period of one hundred eighty days
beyond the one-year statute of limitations. Thus, a claimant is able to receive the
full benefit of the additional one hundred eighty days only if the one-hundred-eighty-day letter is received by the potential defendant on the last day of the period
of limitations. If, however, a claimant sends a letter earlier but then needs
additional time to investigate the claim, the claimant may choose to send an
additional one-hundred-eighty-day letter. Under either scenario, the claimant is not
seeking any more time than the statute allows. However, if we accepted Ortega’s
position and gave effect only to the first one-hundred-eighty-day letter, we would
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be cutting off a litigant’s right to obtain the maximum one-hundred-eighty-day
extension. We would thus be penalizing the claimant who needs additional time to
investigate and, in particular, the claimant who acted responsibly on giving early
notice to a potential defendant. This result would run contrary to the purpose
behind R.C. 2305.11(B)(1) and unduly restrict a claimant’s ability to commence a
lawsuit.
{¶ 14} Since the language of R.C. 2305.11(B) does not limit the number of
effective one-hundred-eighty-day letters a claimant can send and since the
legislative intent is to afford malpractice claimants with the maximum amount of
time in which to investigate their claims, we find that a claimant is not limited to
the time extension of a first one-hundred-eighty-day letter. Instead, we hold that
pursuant to R.C. 2305.11(B)(1), a medical malpractice claimant can send more than
one effective notice of intent to sue prior to the expiration of the one-year statute of
limitations set forth in R.C. 2305.11(B)(1).
{¶ 15} Clearly, to be valid, the one-hundred-eighty-day letter must comply
with the requirements set forth in R.C. 2305.11(B)(1).2 The letter must be received
within the one-year period of limitations and must state that the claimant is
considering bringing a malpractice action against the recipient. Although the
statute does not designate the manner of service, clearly the preferable methods are
those in which there is verification of receipt, such as registered or certified mail,
so that a medical malpractice claimant can know and prove that the letters have
been received by the potential defendants within the one-year statute of limitations.
{¶ 16} In sum, we conclude that where a party complies with the
requirements of R.C. 2305.11(B)(1) and sends multiple written notices of intent to
sue prior to the expiration of the one-year statute of limitations set forth in R.C.
2. To have any effect, the one-hundred-eighty-day letter must also be received sometime during the
last one hundred seventy-nine days of the one-year period of limitations. Edens, supra,43 Ohio
St.3d at 178,
539 N.E.2d at 1126. Otherwise, the notice is premature and the one-year statute of
limitations will control.
Id.
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2305.11(B)(1), the one-hundred-eighty-day period begins to run from the date the
last notice is received by the potential defendants. The statute of limitations will
not bar prosecution of an action for malpractice commenced within one hundred
eighty days of the last notice.
{¶ 17} Applying the statute to this case, we find that the one-hundred-eighty-day period began to run when the March 9, 1995 letter was received by
appellant. Since appellee filed suit within that one-hundred-eighty-day period (on
September 1, 1995), her cause of action is not barred by the statute of limitations
set forth in R.C. 2305.11(B)(1).
{¶ 18} Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.
COOK, J., dissents.
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COOK, J., dissenting.
{¶ 19} The majority declares that the legislative intent of R.C. 2305.11(B)
is “to afford malpractice claimants with the maximum amount of time in which to
investigate their claims.” If this statement were true, there would be no statute of
limitations. After all, a statute of limitations by its very nature limits the amount of
time for litigants to investigate their claims prior to filing.
{¶ 20} We are to construe statutes of limitations broadly so that cases may
be decided on their merits. See Gregory v. Flowers (1972), 32 Ohio St.2d 48,
61
O.O.2d 295,
290 N.E.2d 181, paragraph one of the syllabus; R.C. 1.11. But here
we are concerned with an exception to a statute of limitations—an exception which
should be strictly construed in order to effectuate the public policy against stale
claims. See Powell v. Koehler (1894),
52 Ohio St. 103,
39 N.E. 195, paragraph
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three of the syllabus; see, also, Moore v. Dist. 50 of United Mine Workers of Am.
(C.P.1954), 71 Ohio Law Abs. 317, 319,
131 N.E.2d 462, 463.
{¶ 21} Here, the parties agree that the first notice met the statutory
requirements of R.C. 2305.11(B). So the first notice was effective and was not
nullified by the second one. Given that receipt of the first notice (on February 16,
1995) started the one-hundred-eighty-day period, the complaint filed beyond the
one-year statute of limitations and more than one hundred eighty days after receipt
of the first notice was untimely.
{¶ 22} For the foregoing reasons, I would reverse the judgment of the court
of appeals.
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