COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72096 GLADYS MARSHALL : : Plaintiff-Appellant : : JOURNAL ENTRY v. : : AND DR. BIENVENIDO ORTEGA : : OPINION Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 8, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Cuyahoga County Common Pleas Court, Case No. CV-301926 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: SCOTT I. LEVEY FORREST A. NORMAN, III FRANK P. GIAIMO WESTON HURD FALLON PAISLEY MONDELLO & LEVEY & HOWLEY, L.L.P. 55 Public Square #1700 2500 Terminal Tower Cleveland, Ohio 44113 50 Public Square Cleveland, Ohio 44113-2241 RONALD B. PELTZ RONALD B. PELTZ & ASSOC. 55 Public Square #1710 Cleveland, Ohio 44113 -2- JUDGE TERRENCE O'DONNELL: This is another case which concerns the question of whether the statute of limitations bars prosecution of a medical malpractice action where the patient's counsel has timely sent multiple letters of notice of intent to sue to a physician, and commences suit within 180 days of the last of those letters. Here, Gladys Marshall appeals from a decision of the common pleas court granting summary judgment in favor of Dr. Bienvenido Ortega on her medical malpractice claim, finding that because she failed to file suit within 180 days of her counsel's first letter of notice of intent to sue, the statute of limitations barred her action. For the reasons which follow, we believe Marshall timely commenced this action and, therefore, reverse the judgment and remand the matter for further proceedings. The record in this case reveals that on April 12, 1994, Ortega performed a laminectomy and spinal fusion on Marshall. During that surgery, Ortega allegedly misplaced a metallic screw at Marshall's left, fifth lumbar vertebra, which caused her to experience severe pain in her left foot. As a result, Ortega performed a second surgery to reset that screw but, following this surgery, Marshall continued to suffer pain radiating through her left leg and her back, and could not walk without a walker. As a result, Marshall retained an attorney who, on February 9, 1995, sent a letter of representation to Ortega, which also contained the following paragraph: -3- Please be advised that our office is contemplating bringing a possible medical malpractice action against you resulting from your care and treatment of our client, Gladys Marshall. (Emphasis added). One month later, on March 9, 1995, Marshall's counsel sent a second letter to Ortega, which stated in relevant part: Please be advised that pursuant to Ohio Revised Code Section 2305.11(B), you are hereby being served with notice that Gladys Marshall is contemplating bringing an action for medical malpractice against you relating to your care and treatment of her. Please be advised that pursuant to said statute, Gladys Marshall will have 180 days from the date you receive this notice in which she may bring an action against you for medical malpractice. (Emphasis added). Thereafter, on September 1, 1995, Marshall filed suit against Ortega, alleging he negligently performed the surgeries. On December 15, 1995, Ortega moved for summary judgment, asserting the statute of limitations barred her action. At that point, Marshall voluntarily dismissed her case against him without prejudice. On January 19, 1996, however, Marshall refiled the suit and, by way of answer, Ortega raised the statute of limitations as an affirmative defense. The record further reveals that on August 8, 1996, Ortega again moved for summary judgment, asserting that the statute of limitations barred the action, because he claimed that the February 9, 1995 letter he received from her counsel, rather than the March 9, 1995 letter, constituted the statutory notice of Marshall's intent to sue him and that because suit had not been filed within 180 days of that February 9, 1995 letter, the statute of limitations precluded the action. -4- Marshall opposed the motion, urging that the February 9, 1995 letter constituted a traditional letter of representation, which did not meet the requirements of statutory notice as set forth in R.C. 2305.11(B)(1), and further arguing, however, that the March 9, 1995 letter did conform to the requirements of R.C. 2305.11(B)(1) and constituted the statutory notice which permitted suit to be commenced on or before September 9, 1995. Alternatively, Marshall urged that if the February 9, 1995 letter did constitute statutory notice, it was prematurely sent and, thus, the March 9, 1995 letter effectively commenced the 180-day statutory extension period. After consideration, the trial court granted Ortega's motion for summary judgment. Marshall now appeals from that judgment and raises one assignment of error for our review. It states: THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT WHEN THE COURT HELD THAT A LETTER OF REPRESENTATION SENT TO A PHYSICIAN OPERATED AS A 180 DAY NOTICE UNDER OHIO REVISED CODE SECTION 2305.11(B) FOR PURPOSES OF CALCULATING THE MEDICAL MALPRACTICE STATUTE OF LIMITATIONS. Marshall contends the trial court erred when it construed the February 9, 1995 representation letter as a 180-day notice letter and granted Ortega's summary judgment motion, thereby failing to recognize that the March 9, 1995 letter to Ortega constituted the statutory notice which provided an additional 180 days within which to commence the malpractice action. Ortega maintains that the February 9, 1995 letter constituted the required statutory notice and urges that because Marshall failed to file suit within 180 days of that letter, the statute of -5- limitations barred her action and, for that reason, asserts the judgment of the trial court should be affirmed. The issue then presented for our consideration concerns whether the trial court correctly granted summary judgment. We begin by reviewing the law regarding summary judgment. Civ.R. 56(C) states in relevant part: * * *. Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * *. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. In this case, the facts are generally not disputed and, thus, the issue here is whether Ortega is entitled to judgment as a matter of law on the question of the statute of limitations. Pursuant to R.C. 2305.11(A), an action for medical malpractice must be commenced within one year after the cause of action accrues. However, R.C. 2305.11(B)(1), as amended April 16, 1993, provides in relevant part: -6- * * * 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. (Emphasis added). Prior to amendment, it read as follows in relevant part: * * *. 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. (Emphasis added). We recognize that several courts have considered these multiple notice cases. In Johnson v. St. Luke's Hosp. (1981), 2 Ohio App.3d 427, our court, in finding a December, 1977 notice to be controlling and a June, 1978 notice to be of no legal effect, stated at 428: * * *. R.C. 2305.11, by its very terms, provides for `a written notice' (emphasis added). Clearly, the statute does not contemplate the use of any more than one notice. A potential plaintiff cannot use this provision to send multiple notices to a prospective defendant in order to extend the statute of limitations. * * *. -7- Subsequent to that decision, however, the legislature amended R.C. 2305.11 and deleted the portion of the statute cited in Johnson v. St. Luke's Hosp., supra. Hence, that decision is no longer controlling because of the amendment to the statute. Nonetheless, in Woods v. Dutta (1997), 119 Ohio App.3d 228, the court there, after citing Johnson v. St. Luke's Hosp., supra, concluded at 232-233 that * * * the language of the statute, as amended, evidences a legislative intent that a single, effective notice be given as opposed to multiple ones. (Emphasis added). We do not agree with this conclusion because reported case and statutory authority indicates that a statute of limitations is remedial in nature and should be interpreted to favor decision of a case on its merits. In Rowe v. Bliss (1980), 68 Ohio App.2d 247, the court stated at 249: The purpose of statutes of limitation is * * * to encourage diligence in the enforcement of demands * * *. (Citation omitted). 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. (Citations omitted). (Emphasis added). Further, in Rahm v. Hemsoth (1976), 53 Ohio App.2d 147, the court stated in relevant part at 149: A statute of limitation * * * is remedial in nature and is to be given a liberal construction to permit the deciding of cases upon their merits * * *. The liberal construction of a statute requires that every reasonable presumption will be indulged and -8- every doubt will be resolved in favor of affording rather than denying a plaintiff his day in court. (Citations omitted). We next observe that R.C. 1.11 provides in relevant part: Remedial laws and all proceedings under them shall be liberally construed in order to promote their object and assist the parties in obtaining justice * * *. Finally, in Baldine v. Klee (1968), 14 Ohio App.2d 181, the court stated in pertinent part at 185: We construe Section 1.11, Revised Code, to mean that a litigant, where possible, should win or lose his case on the merits and not on a procedural matter. In this case, our examination of the February and March letters of counsel reveals that both contained the required statutory language and, hence, both met the requirements of R.C. 2305.11(B)(1). Since this statute affords a claimant an opportunity to obtain a maximum of a 180-day extension of time in which to file a medical malpractice lawsuit by giving notice on the last day of the one-year period, it is remedial in nature and should be construed to encourage case decision on the merits and, thus, no penalty should be imposed for giving notice at an earlier time; further, nothing contained in the statute precludes a claimant from giving more than one such notice, provided however, that all such notices be given prior to the expiration of the original one-year period of the statute of limitations. Hence, the effect of successive letters of notice is not to extend the statute of limitations beyond the maximum 180-day period, but to afford -9- flexibility to counsel to prepare and commence litigation at a time when counsel can best be prepared to do so. Accordingly, after liberally construing R.C. 2305.11(B)(1) in an effort to permit the case to be decided on its merits as we are required to do, we conclude that the March 9, 1995 letter afforded Marshall an opportunity to commence her action until at least September 5, 1995. By commencing that action on September 1, 1995, she timely filed the action and should be permitted to litigate it. Ortega also argues that since Marshall failed to provide an expert witness report as ordered by court, and thereby failed to rebut his summary judgment motion which had been supported by his own affidavit attesting to his own compliance with the medical standards of care in the community, Marshall failed to meet her summary judgment burden of proof and the court properly granted summary judgment on that basis. In this regard, the record shows that, in accordance with Loc.R. 21.1(C), Marshall provided the name, address and qualifications of her expert, and advised the court that she had not as yet received the expert report, but expected it within fourteen days. She further informed the court that her expert expressed an opinion that Ortega failed to exercise reasonable care when he performed surgery on Marshall, [b]y failing to locate nerve roots at the level where the spinal surgery was performed and then take precautions not to injure those nerve roots by insertion of the screws used to locate the fixation device implanted. Marshall then petitioned the court to suspend the expert witness -10- deadlines until resolution of the statute of limitations issue, in order to avoid the expense of expert witness reports and discovery. Loc.R. 21.1(C) states in relevant part: If a party is unable to obtain a written report from an expert, counsel for the party must demonstrate that a good faith effort was made to obtain the report and must advise the court and opposing counsel of the name and address of the expert, the subject of the expert's expertise together with his qualifications and a detailed summary of his testimony. Here, Marshall complied with Loc.R. 21.1(C), supra, and reasonably requested that the court temporarily suspend the deadlines for expert witness reports, until resolution of the statute of limitations matter. Accordingly, this should not have been the basis of the court's ruling. Finally, we observe that the court specifically stated it granted Ortega's 8/8/96" summary judgment motion, in which Ortega did not raise the issue of the expert witness report, indicating that the court granted summary judgment based only upon the statute of limitations issue. Based on the foregoing, we conclude that R.C. 2305.11(B)(1) is a remedial statute, which should be liberally construed to permit cases to be decided on their merits. In this instance where Marshall timely sent two statutory notices of intent to sue, prior to the expiration of the original one-year statute of limitations, each provided a 180-day extension of time within which to file suit, because both met the requirements of the statute, and nothing contained in R.C. 2305.11(B)(1) precludes a claimant from giving more than one such notice. Further, we believe Ortega is not -11- prejudiced because Marshall can never extend the statute beyond the contemplated statutory 180-day period following expiration of the original statute of limitations. Thus, our holding is that where a claimant timely sends more than one statutory notice of intent to sue in accordance with R.C. 2305.11, the statute of limitations does not bar prosecution of an action for medical malpractice commenced within 180 days of the latest of the those notices. Accordingly, the order of summary judgment is reversed and the matter is remanded for further proceedings. Judgment reversed and cause remanded. -12- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee her costs herein. 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. KENNETH A. ROCCO, J., CONCURS JOSEPH J. NAHRA, P.J., CONCURS WITH CONCURRING OPINION JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72096 GLADYS MARSHALL, : : Plaintiff-Appellant : : C O N C U R R I N G vs. : : O P I N I O N DR. BIENVENIDO ORTEGA, : : Defendant-Appellee : DATE: OCTOBER 8, 1998 NAHRA, P.J., CONCURRING: The 180-day notice provision of R.C. 2305.11(B)(1) is intended to extend the one-year statute of limitations in medical malpractice cases. As a practical matter, if we were to hold that only one 180-day notice could be given, the one-year statute of limitations in many cases could well be shortened. If an attorney who is retained soon after alleged malpractice sends a letter of representation and it is construed as an 180-day letter, the 180 days could expire before one year after the alleged malpractice. This clearly would be an unintended result of the statute which, rather than requiring a claimant to rush to the courthouse, gives him more time to investigate, negotiate, settle, etc. Thus, I agree a claimant may give more than one 180-day notice and the .