DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF ARKANSAS

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

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 Arkansas law.

I. ARKANSAS-SPECIFIC LEGAL FRAMEWORK

A. Governing Law

This claim is governed by Arkansas Code Annotated Title 16, Chapter 114 (Medical Malpractice), Ark. Code Ann. Section 16-114-201 et seq., which establishes the standards and procedures for medical malpractice actions in Arkansas.

B. Statute of Limitations

General Rule: Under Ark. Code Ann. Section 16-114-203, a medical malpractice action must be commenced within two (2) years after the cause of action accrues.

Discovery Rule: Arkansas applies the discovery rule. A cause of action accrues when the plaintiff knows or, in the exercise of reasonable diligence, should have known of the injury and its cause. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346 (2016).

Continuing Course of Treatment: The statute of limitations may be tolled during a continuing course of treatment by the same provider for the same condition. Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999).

Foreign Object Exception: For cases involving a foreign object negligently left in the patient's body, the cause of action accrues when the patient discovers or reasonably should have discovered the presence of the foreign object.

Minors: For minors, the statute of limitations does not begin to run until the minor reaches the age of majority (18), but the action must be filed within two years after reaching majority or before the minor's 21st birthday, whichever is earlier. Ark. Code Ann. Section 16-114-203(b).

Mental Incapacity: The limitations period is tolled during periods of mental incapacity. Ark. Code Ann. Section 16-56-116.

No Statute of Repose: Arkansas 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. Modified Comparative Fault (50% Bar Rule)

Arkansas follows the doctrine of modified comparative fault under Ark. Code Ann. Section 16-64-122. A plaintiff's recovery is reduced by their percentage of fault. However, if the plaintiff is found to be 50% or more at fault, the plaintiff is completely barred from recovery.

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

D. Standard of Care Under Arkansas Law

Under Arkansas law, a medical provider must exercise that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which they belong, acting in the same or similar circumstances. Warnock v. Kraft, 2014 Ark. 193, 433 S.W.3d 853 (2014).

Similar Locality Rule: Arkansas traditionally applied a "same or similar locality" rule, meaning the standard of care was determined by reference to what practitioners in the same or similar localities would do. However, this has been modified, and for specialists, Arkansas may apply a national standard. Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945 (1976).

E. Expert Witness Requirements - Ark. Code Ann. Section 16-114-206

Expert Testimony Required: Arkansas requires expert testimony to establish the standard of care and breach, except in cases where the negligence is so obvious that a layperson could determine it without expert guidance (common knowledge exception).

Expert Affidavit at Filing: Under Ark. Code Ann. Section 16-114-209, a medical malpractice complaint must be accompanied by an affidavit from a qualified expert stating that there is a reasonable basis for filing the complaint. The expert must:
1. Be licensed to practice in the same discipline as the defendant;
2. Be familiar with the standards of care applicable to the defendant;
3. Have reviewed the relevant facts;
4. Believe that the defendant failed to act within the appropriate standard of care.

Expert Qualifications - Ark. Code Ann. Section 16-114-206:
1. Licensed to practice in the same discipline as the defendant;
2. Familiar with the degree of care and skill ordinarily expected of healthcare providers practicing in the same field as the defendant;
3. If the defendant is a specialist, the expert must be a specialist in the same or similar specialty as the defendant.

Certification: We certify that we have retained a qualified medical expert who has reviewed the relevant medical records and has provided an opinion that the defendant failed to act within the appropriate standard of care and that such failure caused our client's injuries.

F. Damage Caps - Constitutional Issues

No Enforceable Cap: Arkansas's damage cap on non-economic damages in medical malpractice cases was declared unconstitutional by the Arkansas Supreme Court. Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415 (2007) (finding legislative cap on damages violated the right to jury trial under the Arkansas Constitution).

As a result, there is currently no cap on compensatory damages (economic or non-economic) in medical malpractice cases in Arkansas.

Civil Justice Reform Act of 2003: While portions of this act attempted to impose damage caps, those provisions were struck down. Punitive damage limitations may still apply under certain circumstances.

G. Informed Consent

Arkansas recognizes the doctrine of informed consent. A physician has a duty to disclose to a patient the risks of a proposed treatment or procedure. Fuller v. Starnes, 268 Ark. 476, 597 S.W.2d 88 (1980).

The test in Arkansas is a "professional standard" - what a reasonable physician would disclose under the circumstances, rather than what a reasonable patient would want to know. Expert testimony is required to establish the standard of disclosure.

H. Vicarious Liability

Hospital Liability - Respondeat Superior: Arkansas hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Jackson v. Sparks Reg'l Med. Ctr., 2012 Ark. 16, 386 S.W.3d 323 (2012).

Apparent/Ostensible Agency: Arkansas recognizes apparent agency liability for hospitals with respect to independent contractor physicians when the hospital holds itself out as providing medical care and the patient reasonably relies on the hospital rather than selecting a particular physician.

Corporate Negligence: Arkansas hospitals may be held directly liable for negligence in credentialing, supervision, and retention of medical staff.

I. Loss of Chance Doctrine

Arkansas has not definitively adopted the loss of chance doctrine. The Arkansas Supreme Court has not squarely addressed whether a plaintiff can recover for a lost chance of survival or better recovery. Practitioners should argue traditional causation while preserving loss of chance arguments where applicable.

J. Res Ipsa Loquitur

Arkansas recognizes res ipsa loquitur in medical malpractice cases under limited circumstances where:
1. The injury is of a kind that ordinarily does not occur in the absence of negligence;
2. The instrumentality causing the injury was within the exclusive control of the defendant;
3. The injury was not due to any voluntary action by the plaintiff.

Talley v. Davis, 371 Ark. 541, 268 S.W.3d 864 (2007).

The doctrine creates a permissive inference of negligence and may allow a case to proceed to the jury without expert testimony in obvious cases (e.g., wrong-site surgery, retained surgical instruments).

K. Government/Sovereign Immunity

State Claims: Claims against the State of Arkansas and its agencies are governed by the Arkansas Claims Commission. Ark. Code Ann. Section 19-10-201 et seq. The state has limited waiver of sovereign immunity.

Claims Commission: Medical malpractice claims against the state must be filed with the Arkansas Claims Commission. There are damage caps for claims against the state.

Municipal and County Immunity: Counties and municipalities have limited immunity under Arkansas law, with certain exceptions for negligent acts.

L. Wrongful Death

Arkansas's wrongful death statute, Ark. Code Ann. Section 16-62-102, allows recovery for death caused by medical malpractice. Damages include:
- Medical and funeral expenses;
- Loss of income;
- Mental anguish and suffering of survivors;
- Loss of guidance, consortium, and services.

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 Arkansas 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 Arkansas law, [Defendant Healthcare Provider] was required to exercise that degree of care and skill which is expected of a reasonably competent practitioner in the same class, 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

Pursuant to Ark. Code Ann. Section 16-114-209, we have retained [Expert Name, M.D.], a board-certified [Specialty] physician who meets the qualifications under Ark. Code Ann. Section 16-114-206. [Dr./Expert Name] has concluded, to a reasonable degree of medical certainty, that:

1. [Defendant Provider] failed to meet the applicable standard of care;
2. This failure was a proximate cause of [Client Name]'s injuries; and
3. Had appropriate care been rendered, [describe avoided outcome].

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

Arkansas does not have an enforceable cap on non-economic damages:
- Physical pain and suffering
- Mental anguish
- 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. Central 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 have obtained an expert opinion from a qualified physician confirming that the defendant's care fell below the standard of care and caused our client's injuries.

We are prepared to litigate this matter through trial in the Circuit Court of [County] County, Arkansas, 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]
Arkansas Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

ARKANSAS MEDICAL MALPRACTICE PRACTICE NOTES

• Expert Affidavit Required: Ark. Code Ann. Section 16-114-209 requires expert affidavit filed with complaint.

• No Damage Cap: Arkansas's damage cap was declared unconstitutional in Summerville v. Thrower (2007).

• 50% Bar Rule: Modified comparative fault - plaintiff barred if 50% or more at fault.

• Similar Locality Rule: Arkansas traditionally applies a "same or similar locality" standard, though specialists may be held to a national standard.

• Discovery Rule: Statute runs from discovery of injury and cause.

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

• Informed Consent Standard: Professional (physician-based) standard, not patient-based.

• State Claims: Must be filed with Arkansas Claims Commission.

• Peer Review Privilege: Ark. Code Ann. Section 16-46-105 protects peer review materials.

• Venue: Circuit Court in county where injury occurred or where defendant resides.

This template is specific to Arkansas law. Medical malpractice claims in Arkansas require an expert affidavit at filing. Always verify current law and consult with qualified Arkansas medical malpractice counsel.