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May 23, 2006

It sometimes amazes me how the law turns on the slightest things. One of the attorneys in my office has a medical malpractice case, and had sent out a 180 day letter under ORC 2305.113 extending the statute of limitations. Actually, being a very cautious sort, he had sent out three of them: a letter to the doctor's office, a letter to the doctor's home, and then had hand-delivered yet another notice to the doctor's office, all within about a month's period of time. The question now is, does the time for filing run from the first letter or the last letter?


That question was answered back in 2000 by the Supreme Court in Marshall v. Ortega: it runs from the last letter. Why? Because the law until 1987 referred to "a" written notice. When the statute was amended, the word "a" was left out; the law now provides that "written notice" can extend the time limit. The Court interpreted this as evidence of "the legislative intent that under the current version of R.C. 2305.11 more than one notice can be effective in extending the time limit."

Interestingly, Marshall affirmed a Cuyahoga County appellate decision. Our court did not find the "a"/not "a" distinction particularly meaningful, deciding the question on policy considerations.

I think the decision is correct, for the policy reasons; as both courts explain, the purpose of the notice provision is to extend the statute to allow counsel to have sufficient time to investigate the merits of a potential action. Allowing the time to run from the last letter, so long as that's within the original statutory period, gives no more than the law allows in the first place.

But the Supreme Court's decision highlights some of the pitfalls of textualism in statutory and constitutional interpretation. I'm not a betting man - or at least, not a good one, as my forays to Vegas have sadly shown - but if I were, I'd bet that the Case of the Disappearing "A" was more likely due to a typographical error or simple omission than to conscious design.  Lawyers are second only to literary critics in trying to milk every drop of meaning from every word.  But sometimes, a cigar is just a cigar.

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