DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF ALASKA

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Alaska ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Alaska

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Risk Management / Claims Administrator / Insurance Carrier]
[Hospital / Medical Group / Insurance Company Name]
[Street Address]
[City, State ZIP]

RE: MEDICAL MALPRACTICE CLAIM - SETTLEMENT DEMAND
Patient/Claimant: [Client Full Name]
Date(s) of Negligent Care: [Date or Date Range]
Healthcare Provider(s): [Provider Name(s)]
Facility: [Hospital/Clinic Name]
Claim Number: [If assigned]

Dear [Recipient Name]:

This firm represents [Client Name] in connection with the medical malpractice that occurred during [his/her] care and treatment at [Facility Name] by [Healthcare Provider Name(s)]. This letter constitutes formal notice of our client's claim and our demand for settlement under Alaska law.

I. ALASKA-SPECIFIC LEGAL FRAMEWORK

A. Governing Law

This claim is governed by Alaska Statutes Title 09, Chapter 55, Article 4 (Medical Malpractice), AS 09.55.530-.560, and related provisions governing civil liability in Alaska.

B. Statute of Limitations

General Rule: Under AS 09.10.070(a), a medical malpractice action must be commenced within two (2) years after the cause of action accrues.

Discovery Rule: Alaska applies the discovery rule. A cause of action accrues when the claimant discovers, or reasonably should have discovered, the existence of all elements essential to the cause of action. Austin v. Fulton Ins. Co., 498 P.2d 702 (Alaska 1972); Pedersen v. Zielski, 822 P.2d 903 (Alaska 1991).

Minors: For minors under the age of 8, the statute of limitations is tolled until the minor turns 8 years old. AS 09.10.070(b).

Mental Incompetency: The limitations period is tolled during periods of mental incompetency. AS 09.10.140.

Continuous Treatment Rule: Alaska recognizes the continuous treatment doctrine, which may toll the statute of limitations during ongoing treatment for the same condition. Pedersen v. Zielski, 822 P.2d 903 (Alaska 1991).

No Statute of Repose: Alaska does not have a statute of repose for medical malpractice claims.

Relevant Dates in This Matter:
- Date(s) of negligent care: [Date(s)]
- Date of discovery: [Date]
- Two-year limitations period expires: [Date]

C. Pure Comparative Fault

Alaska follows the doctrine of pure comparative fault under AS 09.17.060. In an action to recover damages for personal injury, the fault of each party shall be determined and damages apportioned accordingly. A claimant's recovery is reduced by their percentage of fault, but recovery is not barred regardless of the degree of fault.

Our investigation confirms that our client bears no responsibility for the injuries sustained.

D. Standard of Care Under Alaska Law

Under Alaska law, a healthcare provider must exercise the degree of care, skill, and learning expected of a reasonably prudent healthcare provider in the profession or class to which they belong, acting in the same or similar circumstances. Nicholson v. Redwolf, 244 P.3d 113 (Alaska 2010).

National Standard: Alaska generally applies a national standard of care for medical professionals, not a locality rule. The standard is what a reasonably competent practitioner in the same field would do under similar circumstances, not limited to the local community.

E. Expert Witness Requirements

Expert Affidavit Upon Request: Under AS 09.55.536, within 45 days after the defendant serves a request, the plaintiff must provide an affidavit from a licensed healthcare provider certifying:
1. The expert has reviewed the facts of the case;
2. The expert has concluded that the defendant failed to meet the applicable standard of care; and
3. The failure was a proximate cause of the injury.

Expert Qualifications - AS 09.20.185: An expert witness in a medical malpractice action must be licensed to practice in the same or substantially similar specialty as the defendant and must have been actively practicing or teaching in that specialty within the five years preceding the date of the occurrence.

Certification: We certify that we have retained a qualified medical expert who has reviewed the relevant medical records and has concluded that the applicable standard of care was breached and that such breach proximately caused our client's injuries.

F. Damage Caps - AS 09.17.010

Alaska imposes caps on non-economic damages in personal injury actions, including medical malpractice:

Non-Economic Damage Cap: Under AS 09.17.010(a), non-economic damages are limited to the greater of:
- $400,000; or
- $8,000 times the plaintiff's life expectancy in years (based on U.S. Life Tables at the time of injury), but not exceeding $1,000,000.

Severe Permanent Injury Exception: Under AS 09.17.010(b), if the plaintiff suffers severe permanent physical impairment or disfigurement, the cap is the greater of:
- $1,000,000; or
- $25,000 times the plaintiff's life expectancy in years, but not exceeding $2,500,000.

Adjustments: These caps are adjusted every three years based on changes to the Consumer Price Index. AS 09.17.010(c).

No Cap on Economic Damages: There is no cap on economic damages such as medical expenses and lost wages.

[If applicable:] Given the nature of our client's injuries [describe if severe permanent impairment applies], the applicable cap is $[Amount].

G. Informed Consent - AS 09.55.556

Alaska has codified the doctrine of informed consent at AS 09.55.556. A healthcare provider must disclose to the patient:
1. The diagnosis;
2. The nature of the proposed treatment;
3. Material risks and benefits of the proposed treatment;
4. Alternative treatments and their risks and benefits;
5. The prognosis if treatment is refused.

The standard is objective - what a reasonable patient would want to know to make an informed decision. A claim requires proof that a reasonable person in the patient's position would not have consented had adequate disclosure been made, and that the undisclosed risk materialized and caused injury.

H. Vicarious Liability

Hospital Liability: Alaska hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Sweet v. Sisters of Providence in Washington, 895 P.2d 484 (Alaska 1995).

Apparent/Ostensible Agency: Alaska recognizes apparent agency liability for hospitals with respect to independent contractor physicians when the patient reasonably believes the physician is an employee. Sweet v. Sisters of Providence in Washington, 895 P.2d 484 (Alaska 1995).

Corporate Negligence: Alaska hospitals may also be held directly liable for negligence in credentialing, supervising, and retaining physicians. Sweet v. Sisters of Providence, 895 P.2d 484 (Alaska 1995).

I. Loss of Chance Doctrine

Alaska has not definitively adopted or rejected the loss of chance doctrine. The Alaska Supreme Court has not issued a controlling decision on this issue. Practitioners should proceed cautiously and argue traditional causation while preserving loss of chance arguments.

J. Res Ipsa Loquitur

Alaska recognizes the doctrine of res ipsa loquitur in medical malpractice cases where:
1. The event is of a kind that ordinarily does not occur in the absence of negligence;
2. Other responsible causes are sufficiently eliminated by the evidence; and
3. The indicated negligence is within the scope of the defendant's duty to the plaintiff.

Totten v. State, 884 P.2d 1079 (Alaska 1994).

K. Government/Sovereign Immunity

State Claims: Claims against the State of Alaska and its agencies (including state-operated healthcare facilities) are governed by the Alaska State Tort Claims Act, AS 09.50.250-.300. The State has waived sovereign immunity for tort claims but with limitations.

Notice Requirements: Claims against the state must be filed within two years and must substantially comply with AS 09.50.250.

Damages: Punitive damages are not recoverable against the state. AS 09.50.280.

L. Apportionment of Fault - AS 09.17.080

Under AS 09.17.080, the trier of fact must determine the percentage of fault attributable to each party, including the plaintiff, defendants, and third parties. Each defendant is generally liable only for its proportionate share of damages (several liability), except:
- A defendant more than 50% at fault is jointly and severally liable for economic damages.
- Non-economic damages are always several only.

II. PRESERVATION OF EVIDENCE - LITIGATION HOLD

YOU ARE HEREBY DIRECTED TO PRESERVE ALL EVIDENCE relating to the care and treatment of [Client Name], including but not limited to:

• Complete medical records (paper and electronic)
• All versions of electronic medical records (including audit trails)
• Nursing notes, medication administration records, and flow sheets
• All diagnostic imaging studies and reports
• Laboratory results and pathology reports
• Operative reports and anesthesia records
• Consultation notes
• Informed consent documents
• Incident/occurrence reports
• Peer review materials (to the extent discoverable)
• Policies, procedures, and protocols in effect at the time of treatment
• Credentialing files for involved healthcare providers
• Staffing records and schedules
• Equipment maintenance records
• Any recorded statements

Modification, destruction, or concealment of any records may result in spoliation sanctions and adverse inference instructions under Alaska law.

III. FACTUAL BACKGROUND

A. Patient History and Presentation

[Client Name], a [age]-year-old [male/female], presented to [Facility/Provider] on [Date] with [chief complaint/reason for visit]:

Relevant Medical History:
- [Relevant past medical history]
- [Relevant surgical history]
- [Current medications]
- [Allergies]

Presenting Symptoms:
- [Symptom 1]
- [Symptom 2]
- [Symptom 3]

B. Chronology of Negligent Care

[Date/Time]: [Describe what occurred]

[Date/Time]: [Describe what occurred]

[Date/Time]: [Describe what occurred]

C. The Medical Error(s)

[Describe specifically what the healthcare provider(s) did wrong]

D. Discovery of Malpractice

Our client [did not discover / could not have reasonably discovered] the malpractice until [Date], when [describe discovery circumstances].

IV. STANDARD OF CARE VIOLATIONS

A. Applicable Standard of Care

Under Alaska law, [Defendant Healthcare Provider] was required to exercise the degree of care, skill, and learning expected of a reasonably prudent healthcare provider in the same specialty, acting in the same or similar circumstances.

Based on our expert's analysis, the applicable standard of care required [Defendant] to:

1. [Standard 1]
2. [Standard 2]
3. [Standard 3]

B. Breaches of the Standard of Care

Breach 1: [Detailed description of breach]

Breach 2: [Detailed description of breach]

Breach 3: [Detailed description of breach]

C. Expert Opinion

We have retained [Expert Name, M.D.], a board-certified [Specialty] physician licensed in [State] with [number] years of experience, who meets the requirements of AS 09.20.185. [Dr./Expert Name] has concluded, to a reasonable degree of medical certainty, that:

1. [Defendant Provider] breached the applicable standard of care;
2. These breaches were a direct and proximate cause of [Client Name]'s injuries; and
3. Had appropriate care been rendered, [describe avoided outcome].

We are prepared to provide the expert affidavit required under AS 09.55.536 upon request.

V. CAUSATION

A. Factual and Proximate Causation

But for the defendant's breach of the standard of care, our client would not have suffered the injuries described herein. The breaches were the proximate cause of our client's injuries - they were foreseeable consequences of the defendant's negligence.

VI. DAMAGES

A. Physical Injuries

As a direct and proximate result of the defendant's medical negligence, our client has suffered:

Primary Injuries:
- [Injury 1]
- [Injury 2]
- [Injury 3]

Current Medical Status:
[Describe current condition and prognosis]

B. Medical Expenses

Past Medical Expenses:

Future Medical Expenses: $[Amount]

C. Lost Earnings

D. Non-Economic Damages

Subject to the statutory cap under AS 09.17.010:
- Physical pain and suffering
- Emotional distress
- Loss of enjoyment of life
- Permanent disability/disfigurement
- Loss of consortium (spouse's claim)

E. Summary of Damages

VII. SETTLEMENT DEMAND

Based upon the clear breach of the standard of care, the severity of our client's injuries, and the substantial damages incurred, we hereby demand:

$[DEMAND AMOUNT]

This demand will remain open for thirty (30) days from the date of this letter, expiring at 5:00 p.m. Alaska Time on [Expiration Date].

VIII. RESPONSE AND ADDITIONAL INFORMATION REQUESTED

Please provide:

1. All professional liability insurance policies applicable to this claim
2. Policy limits for each applicable policy
3. Any self-insured retention amounts
4. Excess/umbrella coverage information
5. Hospital liability coverage (if applicable)

IX. DOCUMENTATION ENCLOSED

• Medical records supporting the claim
• Medical bills and itemized statements
• Employment and wage documentation
• Expert curriculum vitae
• Photographs (if applicable)
• HIPAA authorizations

X. CONCLUSION

This case presents clear medical negligence that caused significant harm to our client. We are prepared to litigate this matter through trial in the Superior Court of Alaska, [Judicial District] District, if necessary. However, we believe early resolution serves all parties' interests.

Please respond by the deadline stated above.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
Alaska Bar Association No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

ALASKA MEDICAL MALPRACTICE PRACTICE NOTES

• Pure Comparative Fault: Alaska follows pure comparative fault - plaintiff's recovery is reduced by their percentage of fault but not barred.

• Non-Economic Damage Cap: $400,000 base cap (adjusted for CPI), or $8,000 x life expectancy, max $1M. Severe permanent injury: $1M base or $25,000 x life expectancy, max $2.5M.

• Expert Affidavit: Must provide within 45 days of defendant's request (AS 09.55.536).

• Expert Qualifications: Same or similar specialty, actively practicing/teaching within past 5 years (AS 09.20.185).

• No Pre-Suit Notice: Alaska does not require pre-suit notice before filing a medical malpractice claim.

• No Statute of Repose: Alaska has no absolute cutoff for medical malpractice claims.

• Several Liability: Generally, each defendant liable only for their proportionate share of non-economic damages.

• Informed Consent: Codified at AS 09.55.556 - objective "reasonable patient" standard.

• Venue: Superior Court in the judicial district where the injury occurred or where the defendant resides.

• Punitive Damages: Available for intentional or reckless conduct. AS 09.17.020.

This template is specific to Alaska law. Medical malpractice claims in Alaska have specific expert requirements and damage caps. Always verify current law and consult with qualified Alaska medical malpractice counsel.