Gingerich v. Pokorny

Geauga County Court of Common Pleas

Gingerich v. Pokorny

361 N.E.2d 1098, 50 Ohio Misc. 1, 4 Ohio Op. 3d 32, 1977 Ohio Misc. LEXIS 87

CourtGeauga County Court of Common Pleas

DecidedMarch 8, 1977

DocketNo. 76 P 496

StatusPublished

Cited by4 cases

This text of 361 N.E.2d 1098 (Gingerich v. Pokorny) is published on Counsel Stack Legal Research, covering Geauga County Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gingerich v. Pokorny, 361 N.E.2d 1098, 50 Ohio Misc. 1, 4 Ohio Op. 3d 32, 1977 Ohio Misc. LEXIS 87 (Ohio Super. Ct. 1977).

Pincite

Opinion

Veit, J.

R. C. 2305.11 tolls the one year statute of limitations in malpractice actions for 180 days “[i]f a written notice, prior to the expiration of * * * [one year], is given to any person in a medical malpractice ease” to advise the future defendant of the malpractice claim. (Emphasis added.) The legislature has not defined the method [2]*2of giving such notice and it is not clear whether actual receipt of such notice within one year, or depositing the notice in the mail on time, satisfies the requirements of “giving notice.

In this medical malpractice claim the alleged malpractice occurred on May 5, 1975. Plaintiff deposited his notice in the mail on May 4, 1976. Defendant received the letter on May 6, 1976, one day after the statute of limitations had run. Suit was filed on September 3, 1976, and the issue of whether plaintiff’s notice has effectively tolled the statute is before the court on defendant’s motion for summary judgment as a matter of first impression in this state.

Defendant urges upon the court a strict construction of the statute, similar to that given the Federal Tort Claims Act in Steele v. United States (S. D. Calif. 1975), 390 F. Supp. 1109. However, that statute speaks of presentment of a claim in writing rather than of giving notice, and apparently the holding in Steele is not universally followed in other Circuits.

In any event, the better view would be to construe liberally, and in favor of survival of an action known at common law, any limitation imposed on such action by statute. Such has been the trend in Ohio. Meekison v. Groschner (1950), 153 Ohio St. 301, 309.

We cannot speculate that the legislature did hot contemplate the use of the mails as a method for giving notice. A person using the mails has control over the deposit of his communication, but not over the receipt thereof. Modern and accepted ways of communicating would appear to support the view that notice is given upon deposit in the mail of a notice properly addressed to the recipient.

For these reasons, it is the holding of this court that the notice provision of R. C. 2305.11 is satisfied in medical malpractice cases upon deposit of the proper notice in the United States mails within the time provided.

The motion for summary judgment is overruled.

Motion overruled.

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Veit, J.

R. C. 2305.11 tolls the one year statute of limitations in malpractice actions for 180 days “[i]f a written notice, prior to the expiration of * * * [one year], is given to any person in a medical malpractice ease” to advise the future defendant of the malpractice claim. (Emphasis added.) The legislature has not defined the method [2]*2of giving such notice and it is not clear whether actual receipt of such notice within one year, or depositing the notice in the mail on time, satisfies the requirements of “giving notice.

In this medical malpractice claim the alleged malpractice occurred on May 5, 1975. Plaintiff deposited his notice in the mail on May 4, 1976. Defendant received the letter on May 6, 1976, one day after the statute of limitations had run. Suit was filed on September 3, 1976, and the issue of whether plaintiff’s notice has effectively tolled the statute is before the court on defendant’s motion for summary judgment as a matter of first impression in this state.

Defendant urges upon the court a strict construction of the statute, similar to that given the Federal Tort Claims Act in Steele v. United States (S. D. Calif. 1975), 390 F. Supp. 1109. However, that statute speaks of presentment of a claim in writing rather than of giving notice, and apparently the holding in Steele is not universally followed in other Circuits.

In any event, the better view would be to construe liberally, and in favor of survival of an action known at common law, any limitation imposed on such action by statute. Such has been the trend in Ohio. Meekison v. Groschner (1950), 153 Ohio St. 301, 309.

We cannot speculate that the legislature did hot contemplate the use of the mails as a method for giving notice. A person using the mails has control over the deposit of his communication, but not over the receipt thereof. Modern and accepted ways of communicating would appear to support the view that notice is given upon deposit in the mail of a notice properly addressed to the recipient.

For these reasons, it is the holding of this court that the notice provision of R. C. 2305.11 is satisfied in medical malpractice cases upon deposit of the proper notice in the United States mails within the time provided.

The motion for summary judgment is overruled.

Motion overruled.

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361 N.E.2d 1098, 50 Ohio Misc. 1, 4 Ohio Op. 3d 32, 1977 Ohio Misc. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gingerich-v-pokorny-ohctcomplgeauga-1977.

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