Recently, the Tenth District decided Szwarga v. Riverside Methodist Hospital, 2014-Ohio-4943, in which the court held that the plaintiff’s 180-day letter, extending the statute of limitations in a medical malpractice action in Ohio, complied with R.C. 2305.113(B)(1) even though the letter indicated that the plaintiff was not interested in pursuing litigation and only sought a settlement discussion with the hospital’s insurer within the next 180 days. If no settlement could be reached, the letter indicated the plaintiff would file a lawsuit to protect the statute of limitations. The trial court determined the letter was insufficient based the court interpretation of it as being one for settlement and not to provide the defendant notice of impending litigation.
R.C. 2305.113(B)(1) provides for an additional 180 days to file a cause of action for medical malpractice, if prior to the expiration of the one-year period a claimant “gives to the person who is the subject of that claim written notice that the claimant is considering bringing an action upon that claim.” The statute was enacted in order to decrease the likelihood of frivolous medical malpractice actions by allowing the putative plaintiffs additional time to investigate the claims if brought to the attorney’s attention moments before the expiration of the one-year statute of limitation. Marshall v. Ortega, 87 Ohio St.3d 522, 523 (2000).
In consideration of those principles, along with the fact that the 180 day letters should be liberally construed to permit cases to be decided on the merits, the Tenth District held the emphasis in the sufficiency of the 180 day letter analysis, should be on whether the defendant received adequate notice of the possibility of a malpractice suit. Telling a defendant that failing to settle the case will lead to litigation suffices. The court also noted the letter was addressed from an attorney, indicating he was retained to represent the plaintiff, and that the plaintiff was injured as a result of the defendant’s care.
Beyond the broader interpretation or R.C. 2305.113, the concurring opinion also brought to light an important consideration. The purpose behind the 180 day letter was to allow the attorney to determine whether a claim exists, but in Szwarga, the letter indicated the claim existed. In the concurring opinion, Judge Dorrian pointed out that even though the claim may have already been investigated enough to determine litigation may be pursued, in light of the complexity of the affidavit of merit requirement in Civ.R. 10(D)(2), additional time may be needed beyond determining that a claim simply exists.
This point should not be overlooked. It may be a defendant’s next mode of attack on the 180 day letter issue—claiming that the plaintiff did not need additional time to file the litigation—so the Szwarga case will be a good starting point to ensure that the 180-letter sent to the defendant is sufficient to extend the one-year statute of limitations on medical malpractice claims.
