
    Anderson v. Bickmore. 
    
    (No. 78-559
    Decided June 20, 1979.)
    Court of Common Pleas of Montgomery County.
    
      Mr. Glen E. Mumpower, for plaintiff.
    
      Mr. William H. Thornburgh, for defendant.
    
      
       Decision affirmed by Second District Court of Appeals on January 23,1980, case No. 6485.
    
   Rice, J.

Plaintiff engaged the defendant, a medical specialist, for treatment of an ailment of the plaintiffs left ear. On September 10, 1976, the defendant operated on the plaintiffs ear in an allegedly negligent manner, causing injury. The doctor-patient relationship between the parties subsequently terminated, no later than October 19, 1976.

The plaintiff mailed notice of contemplated legal action to the defendant on September 7, 1977, and notice was received on September 8, 1977. On March 9, 1978, the plaintiff commenced this action. The defendant moved to dismiss, prior to answer for the reason that the action was time-barred by the one-year statute of limitations set forth in R. C. 2305.11(A).

DISCUSSION

R. C. 2305.11(A) was amended in 1975 to provide, in addition to the general one-year limitation of malpractice claims, that “[i]f a written notice, prior to the expiration of the time contained in this division, is given to any person [contemplated as a defendant in a medical malpractice claim] * * *, then an action may be commenced at any time within 180 days after that notice is given.”

The notice provision is subject to two plausible alternative interpretations: (1) notice does not suspend the one-year limitation and only extends the time for commencement of an action to the extent that the balance of the 180-day notice period, computed from date of notice, exceeds the one-year limitation period, computed from the date of accrual of the cause of action; or (2) notice suspends the one-year limitation, providing an absolute extension of the statutory period to a total of one year and 180 days. In the present case, the plaintiffs notice was given less than one year after the date of the operation and was, therefore, clearly given (regardless of the precise date on which the cause of action accrued) prior to expiration of the threshold one-year limitation. Under the first alternative, however, the plaintiff would be barred because he commenced the action 182 days after the defendant received notice and 183 days after notice was sent. See Gingerich v. Pokorny (Geauga Co. C. P. 1977), 50 Ohio Misc. 1 (notice is “given” when properly mailed). But under the second alternative, the plaintiff would not be barred because the action was commenced exactly one year and 180 days after the earliest date on which the cause of action could have accrued.

The notice provision is unique to the Ohio scheme of limitations, and there is no Ohio case law directly addressing the suitability of either construction of the effect of notice. It was stated in Gingerich v. Pokorny, supra, that notice under “R. C. 2305.11 tolls the one year statute* **for 180 days” (emphasis added), but it is unclear whether the court used the term in the technical sense of suspension of the limitation upon notice, or merely that notice would defeat application of the statutory bar during that period. The intended sense, in any event, was not crucial to disposition of that case because the court was only deciding whether sending or receiving notice was “giving” notice, for the purpose of determining if notice had been given prior to expiration of the threshold one-year limitation. The effect of notice on the one-year limitation was not at issue.

Under general principles of construction of statutory limitations, the second interpretation (notice suspends the one-year limitation, providing an absolute extension of the statutory period to a total of one year and 180 days) would not be preferred. Generally, exceptions to statutory limitations are to be strictly construed in favor of the limitations operation. Powell v. Koehler (1894), 52 Ohio St. 103. Moreover, the suspension of limitations explicitly provided for in R. C. 2305.16, in limited cases of disability, indicates by negative implication that limitations should not be tolled for other reasons. Finally, R. C. 2305.11(B) supports a restrictive reading of R. C. 2305.11(A) by expressly precluding the extension of limitations in R. C. 2305.11, even where R. C. 2305.16 disabilities or other grounds may be found.

The preference for the first alternative, however, is not arrived at by application of “bright line” standards. A prominent canon of construction is that statutes are to be construed to effect their purposes. Humphrys v. Winous Co. (1956), 165 Ohio St. 45. One purpose of limitation statutes is to promote early assertion of claims. United States v. First National Bank (N.D. Ohio 1943), 54 F. Supp. 351. It is clear that the first alternative carries a practical disincentive for early assertion (by notice) of a claim because early notice by plaintiff contracts the total time ultimately available for commencement of his action. However, the first alternative would better promote the purpose of early assertion of claims by prompt filing, since the time for filing of a claim under the first alternative would be less than under the second.

On balance, the first alternative does less violence to the operation of the general limitation of R. C. 2305.11(A), and the scheme of limitation in R. C. 2305.11(B) and 2305.16.

In addition, as a maxim of statutory construction, if all else fails, recourse must be had to the plain meaning of the statute being construed. A brief perusal of R. C. 2305.11(A) leads to the well-nigh inescapable conclusion that, although the section does not state the effect of notice on the one-year limitation period, it clearly infers that regardless of when notice is given within the threshold one-year limitation period, suit must be filed within 180 days of said notice being given. This would support, conclusively, in this court’s opinion, the first of the two interpretations discussed herein.

CONCLUSION

No genuine issue of material fact exists with respect to the date necessary for application of the statutory limitation in R. C. 2305.11(A). Under the preferred interpretation of the notice provision in the statute, the plaintiff has failed to commence this action within the period allowed. Plaintiffs claim is therefore barred as a matter of law and defendant’s motion for summary judgment should be and is hereby sustained.

Motion for summary judgment sustained. 
      
       Defendant’s motion to dismiss before answer is equivalent to (and to some extent so styled in the supporting affidavit) a Civ. R. 12(B)(6) motion to dismiss for failure to state a claim. It is necessary, however, for the court to consider matters outside of the pleadings because the complaint does not disclose the date of termination of the doctor-patient relationship (i.e., the latest date on which the statutory limitation period could have commenced, Wyler v. Tripi [1971], 25 Ohio St. 2d 164). Plaintiff has been afforded the opportunity to submit affidavits in opposition to the motion, and has done so. The court therefore considers the motion as one for summary judgment under Civ. R. 56, pursuant to Civ. R. 12(B).
     
      
       The notice provision, which follows in text, was added to the existing one-year limitation as part of the legislature’s comprehensive Medical Malpractice Act. It is noted that this court has not been receptive of the Act and has had occasion to find certain of its provisions unconstitutional. Simon v. St. Elizabeth Medical Center, 355 N.E. 2d 903 (Montgomery Co. C. P. 1976) (Rice, J.) (pleading requirements, damage limitation, and arbitration provisions unconstitutional). There is out-of-state authority for the proposition that special malpractice statutory limitations, in particular, may also be unconstitutional, Woodward v. Burnham City Hospital (1978), 60 Ill. App. 3d 285, 377 N.E. 2d 290 (“special interest legislation” violative of state constitutional equivalent to equal protection guarantee), and this court might therefore consider, sua sponte, the constitutionality of R. C. 2305.11(A). The Woodward decision, however, and the authority therein relied upon, were concerned with limitation of actions prior to their accrual. See, e.g., R. C. 2305.11(B). Furthermore, the notice provision in the Ohio Act actually provides relief for claimants from the long-standing one-year malpractice limitation in the statute and, therefore, the one-year limitation should not be the focus of any constitutional challenge.
     
      
       A third alternative may be constructed to allow claims commenced within one year but in no case more than 180 days after notice given within that first year. This alternative is the necessary result of interpreting the permissive term “may,” in the statute, as mandatory “shall.” Although there is authority for such interpretation, generally, see Dorrian v. Scioto Converv. Dist. (1971), 27 Ohio St. 2d 102 (but only where legislative intent is clear), it leads to an absurd result under R. C. 2305.11(A). A plaintiff, giving notice of contemplated action within the first six months (approximately) after accrual of his cause of action, would, by his voluntary act, shorten the period previously available for commencement of suit. A complete disincentive for giving notice would therefore exist in the first six months. In the second six months, this alternative would not differ in effect from the first alternative discussed in text.
     
      
       The Iowa and Illinois malpractice limitation statutes do contain notice provisions. Iowa Code Ann. Sec. 614.1 (Supp. 1978-1979); Ill. Ann. Stat. Ch. 83, Sec. 22.1 (Supp. 1979). Notice in those statutes, however, is from defendant to plaintiff and is only intended to pinpoint the date of accrual of the cause of action from which the general limitation periods run. They do not provide an additional period after notice.
     
      
       Defendant has suggested, in memorandum, two other cases for consideration in disposition of his motion. Andrianos v. Community Traction Co. (1951), 155 Ohio St. 47 and Cox v. Cartwright (Summit Co. 1953), 96 Ohio App. 245. Andrianos, however, is unrelated to the malpractice limitation statute, and Cox, which generally relies on Andrianos, merely stands for the proposition that medical tort and contract claims fall under the specific limitation of malpractice claims rather than the longer general period of limitation for tort and contract claims.
     
      
       The court in Gingerich, supra, relied on Meekison v. Groschner (1950), 153 Ohio St. 301, for the proposition that limitations should be construed in favor of the survival of actions at common law. Although Meekison does not provide direct authority, the proposition is essentially correct. See 50 Ohio Jurisprudence 2d, Statutes, Sections 284, 286. Nonetheless, where an action is finally determined to be subject to bar by a general statutory limitation, exceptions to the limitation are consistently construed narrowly in order to effect its operation. See 34 Ohio Jurisprudence 2d, Limitations of Actions, Section 11, at page 496.
     
      
       Notice does not suspend the one-year limitation and only extends the time for commencement of an action to the extent that the balance of the 180-day notice period, computed from date of notice, exceeds the one-year limitation period, computed from date of accrual of the cause of action.
     
      
       This is similar to, but not as patently absurd as the effect of the third alternative in fn. 3 supra. In the third alternative, plaintiff already has one year to commence, without notice, and the one year is shortened by his act of notice in the first six months. There is a disincentive to give any notice during that period. Under the first alternative, plaintiff has one year to commence suit regardless of notice. In order to obtain additional time he must act with notice. The disincentive comes, not in reducing the time already available to him, but in reducing the time he gains by giving notice. The disincentive is not against giving any notice but only against giving early notice. Under the first alternative approved herein, a plaintiff will almost always wait until very close to the conclusion of the one-year period before giving notice.
     