Rowe v. Bliss

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:

"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 2305.11(A), notice is hereby given that Mrs. Corrine Jean Rowe is presently considering bringing an action against you, relating to professional services provided to her.

"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. 2305.11(A). On February 21, 1979, this motion was granted. Appellants brought a timely appeal to this court, stating as their only assignment of error:

"The Court erred in its interpretation of formal notice pursuant to Ohio Revised Code § 2305.11[A], thereby failing to distinguish between an individual possessing a medical claim and an individual presently considering bringing an action as a result of that claim."

R. C. 2305.11(A) provides, in pertinent part:

"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 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.2305.11(A). Consequently, the court ruled that, when suit was filed on August 25, 1977, the statute of limitations had run. The cause of action had accrued on March 11, 1976, the date of termination of the patient-physician relationship. See Wyler v.Tripi (1971), 25 Ohio St.2d 164.

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. 2305.11(A). We agree with this contention.

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), 130 Ohio St. 92,94, overruled on other grounds in Peters v. Moore (1950),154 Ohio St. 177; Rahm v. Hemsoth (1976), 53 Ohio App.2d 147. Where the statute is free from ambiguity, courts are to avoid giving it any construction other than that which the words demand. Chisnell v. Ozier Co. (1942), 140 Ohio St. 355, paragraph eight of the syllabus; 34 Ohio Jurisprudence 2d 495, Limitation of Actions, Section 11.

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.2305.11(A). To hold otherwise would extend the application of the statute beyond what we see as the clear meaning of the words used by the legislature.

In order to invoke the benefit of the possible 180-day extension of R. C. 2305.11(A), notice must be "given to any person in a medical claim that an individual is presentlyconsidering bringing an action against that person," and that the action relates "to professional services provided to that individual" (emphasis added).

The term "medical claim" is defined in R. C. 2305.11 (D)(3):

"`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.2305.11(D)(3) defines a "medical claim" as a claim "asserted in any civil action," one cannot conclude that the terms "claim" and "action" were intended to be synonymous. Clearly the purpose of R. C. 2305.11(D)(3) is to define a "medical claim," as opposed to other claims, for the application of R. C. 2305.11 and any other relevant statutes.

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. 2307.01:

"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.2305.11(A). There was no notice that appellants were "presently considering bringing an action" to enforce that claim, and use of the words "formal notice" does not convert it to mean such.

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. 2305.11(A), appellants had 180 days from that time to file their action. Their complaint was filed on August 25, 1977, and was, therefore, within the limit of R. C.2305.11(A). The assignment of error is well taken and is hereby sustained.

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.