DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF CALIFORNIA

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

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 California law, including the Medical Injury Compensation Reform Act (MICRA).

I. CALIFORNIA-SPECIFIC LEGAL FRAMEWORK

A. Governing Law - MICRA

This claim is governed by the Medical Injury Compensation Reform Act of 1975 (MICRA), as amended, and related provisions of California law, including California Code of Civil Procedure Section 340.5 and California Civil Code Section 3333.2.

B. Statute of Limitations - Cal. Code Civ. Proc. Section 340.5

General Rule: An action for injury or death against a healthcare provider must be commenced within the earlier of:
- Three (3) years from the date of injury; OR
- One (1) year from the date the plaintiff discovers, or through reasonable diligence should have discovered, the injury.

Discovery Rule: California applies the discovery rule. The one-year discovery period begins when the plaintiff suspects, or should suspect, wrongdoing. Kitzig v. Nordquist, 81 Cal. App. 4th 1384 (2000).

Foreign Object Exception: If the injury was caused by the presence of a foreign body that has no therapeutic or diagnostic purpose or effect, the one-year period begins upon discovery of the foreign body.

Fraud/Concealment: If the defendant committed fraud, intentional concealment, or was guilty of intentionally preventing discovery, the limitations period is tolled.

Minors: For children under the age of 6 at the time of the malpractice, the action must be brought within three years from the act or omission or before the child's 8th birthday, whichever provides a longer period. For children 6 and older, the general statute applies. Cal. Code Civ. Proc. Section 340.5.

Mental Incapacity: The limitations period is tolled during periods of legal incapacity. Cal. Code Civ. Proc. Section 352.

No Statute of Repose: California 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]
- Three-year period expires: [Date]
- One-year discovery period expires: [Date]

C. Pure Comparative Fault

California follows the doctrine of pure comparative fault established in Li v. Yellow Cab Co., 13 Cal. 3d 804 (1975). A plaintiff'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 California Law

Under California law, a healthcare provider must exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. Landeros v. Flood, 17 Cal. 3d 399 (1976).

National Standard: California applies a national standard of care for healthcare providers. The standard is based on the degree of care exercised by practitioners of the same specialty nationwide, not limited to a particular locality. Avivi v. Centro Medico Urgente Medical Center, 159 Cal. App. 4th 463 (2008).

E. Expert Witness Requirements

Expert Testimony Required: California requires expert testimony to establish the standard of care and breach in medical malpractice cases. Cal. Evid. Code Section 801. The only exception is where the negligence is so obvious that a layperson can determine it without expert assistance ("common knowledge" doctrine).

Expert Qualifications: An expert must possess sufficient knowledge, skill, experience, training, or education on the specific medical issue to qualify as an expert. Mann v. Cracchiolo, 38 Cal. 3d 18 (1985).

No Certificate of Merit Requirement: Unlike some states, California does not require a certificate of merit or expert affidavit before filing a medical malpractice complaint.

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 - MICRA (Cal. Civ. Code Section 3333.2)

CRITICAL: California law caps non-economic damages in medical malpractice cases.

AB 35 (2022 Amendment): Effective January 1, 2023, MICRA was amended by AB 35 to increase the caps:

For Cases NOT Involving Death:
- $350,000 starting January 1, 2023
- Increases by $40,000 each year until January 1, 2033
- Then adjusts annually for inflation at 2% per year
- Maximum cap in 2033: $750,000 (before inflation adjustments)

For Cases Involving Death:
- $500,000 starting January 1, 2023
- Increases by $50,000 each year until January 1, 2033
- Then adjusts annually for inflation at 2% per year
- Maximum cap in 2033: $1,000,000 (before inflation adjustments)

Multiple Defendants: The cap applies per plaintiff, not per defendant. The total non-economic damages from all healthcare provider defendants cannot exceed the cap.

Current Cap Calculation: Based on the date of this letter and the date of injury, the applicable cap is approximately $[Amount]. [Calculate based on year of injury or filing]

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

G. Informed Consent - Cobbs v. Grant

California recognizes the doctrine of informed consent based on the landmark case Cobbs v. Grant, 8 Cal. 3d 229 (1972).

A physician must disclose to the patient:
1. The nature of the proposed procedure;
2. The risks of the proposed procedure;
3. The alternatives to the proposed procedure;
4. The risks of the alternatives;
5. The risks of declining treatment.

The standard is objective - what a reasonable patient would want to know to make an informed decision. Expert testimony is not required on the duty to disclose (though may be needed on causation).

Elements:
1. Failure to disclose material information;
2. Undisclosed risk actually occurred;
3. A reasonable person in plaintiff's position would not have consented had disclosure been made;
4. Resulting injury.

H. Vicarious Liability

Hospital Liability - Respondeat Superior: California hospitals are vicariously liable for the negligence of their employees under respondeat superior.

Ostensible/Apparent Agency: California recognizes ostensible agency liability for hospitals. A hospital may be liable for the negligence of independent contractor physicians if:
1. The patient looks to the hospital for care, not to individual physicians;
2. The hospital holds out the physician as its agent;
3. The patient accepts care based on reasonable belief the physician is an employee.
Mejia v. Community Hospital, 99 Cal. App. 4th 1448 (2002).

Corporate/Direct Hospital Negligence: California hospitals have an independent duty to ensure patient safety, including proper credentialing and supervision. Elam v. College Park Hospital, 132 Cal. App. 3d 332 (1982).

I. Loss of Chance Doctrine

California has not adopted the "loss of chance" doctrine as a separate cause of action. A plaintiff must prove it is more probable than not that the defendant's negligence caused the harm. Dumas v. Cooney, 235 Cal. App. 3d 1593 (1991). However, expert testimony may establish that negligence was a "substantial factor" in causing harm.

J. Res Ipsa Loquitur

California recognizes res ipsa loquitur in medical malpractice cases. Cal. Evid. Code Section 646. The doctrine applies where:
1. The accident is of a kind that ordinarily does not occur in the absence of negligence;
2. The injury was caused by an agency or instrumentality within the exclusive control of the defendant;
3. The injury was not due to any voluntary action by the plaintiff.

Ybarra v. Spangard, 25 Cal. 2d 486 (1944) (applying res ipsa loquitur to multiple defendants where unconscious patient was injured during surgery).

K. Government/Sovereign Immunity - California Tort Claims Act

CRITICAL: Special Requirements for Government Defendants

Claims against public entity healthcare providers (county hospitals, UC medical centers, etc.) are governed by the California Tort Claims Act, Gov. Code Section 900 et seq.

Notice Requirements:
- Claims for personal injury: Must be filed within 6 months of accrual
- Claims for property damage: Must be filed within 1 year of accrual

Late Claim Application: If the 6-month deadline is missed, a late claim application may be filed within 1 year of accrual. Gov. Code Section 911.4.

Failure to File Claim: Failure to timely file a government tort claim bars the lawsuit. Gov. Code Section 945.4.

[If applicable:] This letter serves as notice pursuant to Government Code Section 910 et seq.

L. Periodic Payments - Cal. Code Civ. Proc. Section 667.7

For medical malpractice judgments exceeding $50,000 for future damages, the court must, at the defendant's request, order periodic payments of future damages.

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

California recognizes independent tort claims for intentional spoliation of evidence. Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal. 4th 1 (1998). Destruction of evidence may result in sanctions and adverse inferences.

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 California law, [Defendant Healthcare Provider] was required to exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under 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 California with [number] years of experience. [Dr./Expert Name] has concluded, to a reasonable degree of medical probability, that:

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

V. CAUSATION

A. Substantial Factor Causation

Under California law, a defendant's conduct is a cause of the plaintiff's harm if it was a "substantial factor" in bringing about the harm. Mitchell v. Gonzales, 54 Cal. 3d 1041 (1991). The defendant's breach of the standard of care was a substantial factor in causing our client's injuries.

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]

Note: Under Howell v. Hamilton Meats & Provisions, Inc., 52 Cal. 4th 541 (2011), recoverable past medical expenses are limited to amounts actually paid or incurred.

C. Lost Earnings

D. Non-Economic Damages

SUBJECT TO MICRA CAP (Cal. Civ. Code Section 3333.2):
- Physical pain and suffering
- Mental suffering and emotional distress
- Loss of enjoyment of life
- Disfigurement
- Physical impairment
- Inconvenience
- Anxiety and fear
- Loss of consortium (spouse's claim - may be subject to separate cap)

Applicable Cap: Based on current MICRA provisions, the cap on non-economic damages is $[Amount].

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. Pacific 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. CCP SECTION 998 NOTICE

Please be advised that we may serve a formal Offer to Compromise pursuant to California Code of Civil Procedure Section 998. Under this section, if the defendant fails to accept a Section 998 offer and the plaintiff obtains a more favorable judgment, the defendant may be required to pay plaintiff's expert witness fees and costs incurred after the offer was made.

XI. CONCLUSION

This case presents clear medical negligence that caused significant harm to our client. While MICRA limits non-economic damages, the economic damages in this case are substantial and uncapped.

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

ENCLOSURES: As noted above

cc: [Client Name]
File

CALIFORNIA MEDICAL MALPRACTICE PRACTICE NOTES

• MICRA Non-Economic Damage Cap: $350K-$750K for non-death cases; $500K-$1M for death cases (increasing annually through 2033, then 2% inflation adjustment).

• Pure Comparative Fault: Plaintiff's recovery reduced by their percentage of fault but not barred.

• Statute of Limitations: 3 years from injury OR 1 year from discovery, whichever is first.

• Government Claims: 6-month notice requirement for claims against public entities (Gov. Code Section 911.2).

• No Certificate of Merit: California does not require pre-suit expert certification.

• Howell Rule: Past medical damages limited to amounts actually paid or incurred.

• Informed Consent: Cobbs v. Grant - reasonable patient standard.

• National Standard of Care: California applies a national (not locality) standard.

• CCP Section 998: Important cost-shifting tool - consider timing of formal offer.

• Punitive Damages: Available for "oppression, fraud, or malice" but very difficult to obtain in medical malpractice cases.

• Venue: Superior Court in county where injury occurred or where defendants reside. Cal. Code Civ. Proc. Section 395.

This template is specific to California law, including MICRA. Medical malpractice claims in California have unique damage caps and requirements. Always verify current cap amounts and consult with qualified California medical malpractice counsel.