Opinion
44517 Record No. 812215.
September 9, 1983
Present: Carrico, C.J., Cochran, Poff, Compton, Stephenson, and Thomas, JJ., and Harrison, Retired Justice.
Under Virginia Code Sec. 8.01-581.9 (now amended by Acts 1982, c. 151). when a claimant gives notice to defendants of a medical malpractice claim, the time of the statute of limitations [Code Sec. 8.01-243(A)] is suspended for the 120 days following the date of the notice of the claim as stated in Code Sec. 8.01 581.2, the claimant then being entitled to any time remaining of the two-year limitation period before her action is barred.
(1) Limitations of Actions — Medical Malpractice — Statutory Construction — Notice of Claim for Medical Malpractice Required, Etc. (Code Sec. 8.01-581.2); Notice of Claim to Toll Statute of Limitations, Etc. (Code Sec. 8.01-581.9); Personal Action for Injury to Person, Etc. [Code Sec. 8.01-243(A)] — Code Sec. 8.01 581.9, when construed with Code Sec. 8.01-581.2, is a tolling statute suspending or stopping the running of the limitation in Code Sec. 8.01-243(A) during a prescribed period.
(2) Limitations of Actions — Medical Malpractice — Statutory Construction — Notice of Claim for Medical Malpractice Required, Etc. (Code Sec. 8.01-581.2); Notice of Claim to Toll Statute of Limitations, Etc. (Code Sec. 8.01-581.9); Personal Action for Injury to Person [Code Sec. 8.01-243(A)] — Statute of Limitations Time Period Suspended During 120 Days Following Notice of Claim to Defendants and Action was Timely, Being Filed Within that Part of the Two-Year Time Limit Remaining After the 120 Day Suspension.
Plaintiff's medical malpractice claim against defendant arose no later than 8 July 1978. Plaintiff gave defendants notice of her claim pursuant to Code Sec. 8.01-581.2 on 21 March 1980. None of the parties requested a medical review panel. The parties agree that the two-year time period set forth in Code Sec. 8.01-243(A) is the proper limit to apply. This time expired during the 120 days following plaintiff's notice of her claim unless the statute of limitations was tolled by the provision of Code Sec. 8.01-581.9. Plaintiff filed her notice of motion on 23 July 1980, the 120 day period following the notice of claim terminating on 19 July 1980. The Trial Court construed Code Sec. 8.01-581.9 to the effect that if the two-year limitation period expired during the 120 day period following notice of the claim that plaintiff had the remainder of the 120 day period in which to bring her action and that she was time barred since the action was not brought until the 120 day period had expired. The plaintiff appeals.
1. Code Sec. 8.01-581.9 is a tolling statute which, when construed with Code Sec. 8.01-581.2, suspends or stops the running of the statute of limitations [here by agreement of the parties, the two-year period stated in Code Sec. 8.01-243(A)] during a prescribed period. Baker v. Zirkle, 226 Va. 7, 307 S.E.2d 234 (1983), discussed and followed.
2. Here Code Sec. 8.01-581.9 suspended the running of the two-year limit prescribed by Code Sec. 8.01-243(A) for 120 days following notice of the claim as stated in Code Sec. 8.01-581.2. At the expiration of this 120 day period, 190 days remained in the two year limitation period and thus the plaintiff's medical malpractice action was timely filed.
Appeal from a judgment of the Circuit Court of Smyth County. Hon. Wayne L. Bell, judge presiding.
Reversed and remanded.
Michael A. Bragg; Robert T. Mitchell, Jr., for appellant.
Wm. W. Eskridge; Phillip C. Stone (William F. Stone, Jr.; Stone Worthy; Penn, Stuart, Eskridge Jones, on briefs), for appellees.
This medical malpractice case, a companion to Baker v. Zirkle, 226 Va. 7, 307 S.E.2d 234(1983), was brought by Mary Lou Dye against J. S. Staley, M.D., Staley Clinic, Inc., and Smyth County Community Hospital. Sustaining pleas of the statute of limitations filed by the defendants, the trial court dismissed the case. In Baker, we reversed similar trial court action on the authority of Code Sec. 8.01-581.9, one of the medical malpractice review panel statutes. We reverse here on the same authority.
At the time of the proceeding below, Code Sec. 8.01-581.9 read in pertinent part:
The giving of notice of a claim pursuant to Sec. 8.01-581.2 shall toll the applicable statute of limitations for and including a period of one hundred twenty days following the notice to the health care provider . . . or sixty days following issuance of any opinion by the medical review panel, whichever is later.
At its 1982 session, the General Assembly amended this sentence of Code Sec. 8.01-581.9 to read:
The giving of notice of a claim pursuant to Sec. 8.01-581.2 shall toll the applicable statute of limitations for and including a period of 120 days from the date such statute of limitations would otherwise run, or sixty days following issuance of any opinion by the medical review panel, whichever is later.
Acts 1982, ch. 151. Because the alleged negligence in this case occurred prior to the effective date of the amendment, the new statutory language is inapplicable and will not be the subject of further comment in this opinion.
Code Sec. 8.01-581.2, mentioned in -581.9, provides in pertinent part:
No action may be brought for malpractice against a health care provider unless the claimant notifies such health care provider in writing prior to commencing the action. . . . The claimant or health care provider may within sixty days of such notification file a written request for a review by a medical malpractice review panel. . . . No actions based on alleged malpractice shall be brought within ninety days of the notification by the claimant to the health care provider and if a panel is requested within the period of review by the medical review panel.
The parties agree that a two-year limitation period applies. Code Sec. 8.01-243(A). They agree also that Dye's cause of action arose no later than July 8, 1978.
Pursuant to Code Sec. 8.01-581.2, Dye gave notice of her claim on March 21, 1980. None of the parties requested a medical review panel. The two-year limitation period expired on July 8, 1980; the 120-day period following notice of claim terminated on July 19, 1980. Dye filed her motion for judgment on July 23, 1980.
In a letter opinion, the trial court said it interpreted "Sec. 8.01-581.9 to mean that if the two year period of limitations should run during the 120 day period, then the two year statute cannot operate to bar the action so long as the action is filed within that 120 day period." Although the two-year limitation did run during the 120-day period, the court held Dye's action time-barred because it was not filed within that period.
We commented on a similar view in Baker. We said such a view does not give proper effect to the word "toll," as the term is used in Code Sec. 8.01-581.9 and as that Code section and the preclusive provisions of Sec. 8.01-581.2 interact with the applicable statute of limitations. Code Sec. 8.01-581.9 clearly is a tolling statute, we stated, meaning that it "suspend[s] or stop[s] temporarily" the running of the statute of limitations for a prescribed period, for example, "during the defendant's absence from the jurisdiction and during the plaintiff's minority." Baker, 226 Va. at 13, 307 S.E.2d at 237 (emphasis deleted) (quoting Black's Law Dictionary 1334 (5th ed. 1979)).
We pointed out in Baker that:
As a result of Code Sec. 8.01-581.2, a medical malpractice claimant is absolutely forbidden from filing an action until ninety days after notification to the health care provider and then, if a review panel is requested, for the entire period the matter is under review by the panel. In an obvious effort to compensate for these restrictions upon a claimant's usual free access to the courts and to provide relief from an otherwise harsh application of the statute of limitations, the General Assembly enacted Code Sec. 8.01-581.9.
226 Va. at 13, 307 S.E.2d at 236.
Baker involved a claim that was reviewed by a panel. We held that in a review panel case, Code Sec. 8.01-581.9 operates to suspend the running of the statute of limitations from the date notice of claim is given until the termination of the sixty-day period following issuance of the review panel's opinion; the statute then resumes running, with the claimant entitled to the benefit of the time remaining on the limitation period as of the date notice of claim was given.
In the present case, the claim was not reviewed by a panel; hence, the sixty-day provision of Code Sec. 8.01-581.9 is inapplicable. We believe, however, that the rationale of Baker is equally pertinent where, as here, the 120-day provision is involved.
We find, therefore, that when Dye gave notice of her claim on March 21, 1980, the running of the statute of limitations was suspended; at that time, 109 days remained on the two-year limitation period. The 120-day period following notice of claim terminated on July 19, 1980, and the statute of limitations resumed running on July 20. Dye filed her action on July 23, with 105 days yet to run on the limitation period. Hence, the filing was timely.
February 1980 contained 29 days; hence, the computation in the text is based upon a total of 731 days in the two-year limitation period.
Accordingly, the order appealed from will be reversed, and the case will be remanded for further proceedings.
Reversed and remanded.