DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF COLORADO

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

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 pursuant to the Colorado Healthcare Availability Act, C.R.S. Section 13-64-101 et seq.

I. COLORADO-SPECIFIC LEGAL FRAMEWORK

A. Governing Law - Colorado Healthcare Availability Act

This claim is governed by the Colorado Healthcare Availability Act, C.R.S. Section 13-64-101 et seq., which establishes the standards and procedures for medical malpractice actions in Colorado.

B. Statute of Limitations and Repose

Statute of Limitations: Under C.R.S. Section 13-80-102.5(1), all actions against healthcare professionals must be commenced within two (2) years after the claimant discovers, or in the exercise of reasonable diligence should have discovered, the injury.

Discovery Rule: Colorado follows a discovery rule. The limitations period begins when the plaintiff knew or should have known of the injury and its cause. Mastro v. Brodie, 682 P.2d 1162 (Colo. 1984).

Statute of Repose: Notwithstanding the discovery rule, C.R.S. Section 13-80-102.5(1) imposes an absolute three (3) year statute of repose from the date of the act or omission. No action may be brought more than three years after the alleged breach.

Foreign Object Exception: The statute of repose does not apply to actions for the negligent leaving of a foreign object in a patient's body. C.R.S. Section 13-80-102.5(2).

Minors: For minors under six years of age, the action must be commenced within two years after the child's sixth birthday, but in no event more than six years after the act. C.R.S. Section 13-80-102.5(1)(b).

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

C. Modified Comparative Fault

Colorado follows modified comparative fault with a 50% bar. Under C.R.S. Section 13-21-111, a plaintiff may not recover damages if their fault is equal to or greater than the combined fault of all defendants. If the plaintiff's fault is less than 50%, damages are reduced proportionally.

Our investigation has determined that our client was in no way negligent or at fault for the injuries sustained.

D. Standard of Care Under Colorado Law

Under Colorado law, a healthcare professional must exercise that degree of care and skill that is expected of a reasonably competent practitioner in the same class to which the healthcare professional belongs, acting in the same or similar circumstances. Melville v. Southward, 791 P.2d 383 (Colo. 1990).

Specialist Standard: Specialists are held to the standard of care of reasonably competent specialists in their field of practice. Blair v. Eblen, 461 P.2d 313 (Colo. 1969).

E. Certificate of Review Requirement - CRITICAL

Under C.R.S. Section 13-20-602, a certificate of review is REQUIRED within 60 days after service of the complaint. The certificate must:

1. Be executed by the attorney for the plaintiff;
2. State that the attorney has consulted with a qualified expert;
3. State that the expert has concluded that the defendant's conduct fell below the applicable standard of care; and
4. State that the expert's conclusion is based on a review of the pertinent records and facts.

Failure to file the certificate of review results in mandatory dismissal of the claim. Martinez v. Badis, 842 P.2d 245 (Colo. 1992).

Certification: We have consulted with a qualified medical expert who has reviewed the relevant medical records and has concluded that the applicable standard of care was breached.

F. Expert Witness Requirements

Under C.R.S. Section 13-64-401, expert testimony is required to establish the standard of care and breach thereof. The expert must:

1. Be licensed to practice in the same or substantially similar field as the defendant;
2. Be substantially familiar with the applicable standard of care; and
3. Have practiced or taught in the defendant's specialty within five years preceding the incident.

G. Damage Caps

Noneconomic Damages Cap: Under C.R.S. Section 13-64-302, noneconomic damages in medical malpractice cases are capped at $300,000 per patient, or $1,000,000 if the court finds justification based on clear and convincing evidence.

Per Provider Cap: The cap applies per claimant, not per defendant.

Periodic Payments: For awards exceeding $150,000 for future damages, the court may order periodic payments. C.R.S. Section 13-64-203.

[If applicable:] Based on the severity of our client's injuries, we will seek to establish clear and convincing evidence justifying application of the increased $1,000,000 cap.

H. Informed Consent

Colorado recognizes informed consent as a basis for medical malpractice liability. A physician must disclose the nature of the procedure, risks, benefits, alternatives, and risks of alternatives. Gorab v. Zook, 943 P.2d 423 (Colo. 1997).

The standard is what a reasonable patient would want to know to make an informed decision. Gerety v. Demers, 589 P.2d 180 (Colo. 1978).

I. Vicarious Liability

Hospital Liability: Colorado hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Krane v. Saint Anthony Hosp. Sys., 738 P.2d 75 (Colo. App. 1987).

Apparent Agency: Colorado recognizes apparent agency liability when a patient reasonably believes a physician is employed by the hospital. Kashishian v. Port, 167 P.3d 183 (Colo. App. 2007).

J. Loss of Chance Doctrine

Colorado has not definitively adopted the loss of chance doctrine in medical malpractice cases. Traditional causation principles apply, requiring proof that the defendant's negligence more likely than not caused the harm. Greenberg v. Perkins, 845 P.2d 530 (Colo. 1993).

K. Res Ipsa Loquitur

Colorado recognizes res ipsa loquitur in medical malpractice cases where the injury is of a type that does not ordinarily occur without negligence, and the instrumentality was within the defendant's exclusive control. Stewart v. Sbarbaro, 381 P.2d 22 (Colo. 1963).

L. Government Immunity

Colorado Governmental Immunity Act: Claims against public hospitals and healthcare providers are governed by the Colorado Governmental Immunity Act, C.R.S. Section 24-10-101 et seq. A 182-day notice requirement applies, with damage caps of $424,000 per person and $1,195,000 per occurrence (adjusted periodically).

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 will result in claims for spoliation, sanctions, and adverse inference instructions under Colorado law. Aloi v. Union Pac. R.R. Corp., 129 P.3d 999 (Colo. 2006).

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 Colorado law, [Defendant Healthcare Provider] was required to exercise that degree of care and skill expected of a reasonably competent practitioner 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. [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 direct and 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. Under Colorado law, the plaintiff must prove that the defendant's negligence was a cause of the injury. Armentrout v. FMC Corp., 842 P.2d 175 (Colo. 1992).

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

• Physical pain and suffering
• Mental anguish
• Loss of enjoyment of life
• Permanent disability/disfigurement
• Loss of consortium (spouse's claim)
• Inconvenience
• Emotional distress

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. Mountain 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 comply with the certificate of review requirements of C.R.S. Section 13-20-602 upon filing.

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

ENCLOSURES: As noted above

cc: [Client Name]
File

COLORADO MEDICAL MALPRACTICE PRACTICE NOTES

• Certificate of Review Required: Must file within 60 days after service of complaint - failure results in dismissal.

• Damage Caps: $300,000 noneconomic damages; up to $1,000,000 with clear and convincing evidence of justification.

• Modified Comparative Fault: Plaintiff's recovery reduced by percentage of fault; barred if 50% or more at fault.

• Expert Requirements: Expert must be in same or substantially similar specialty, practiced/taught within past 5 years.

• No Loss of Chance: Colorado has not adopted the loss of chance doctrine.

• Statute of Repose: 3 years from act/omission - one of the shorter repose periods nationally.

• Governmental Immunity: Special notice requirements (182 days) and damage caps for public entities.

• Periodic Payments: Court may order periodic payments for future damages exceeding $150,000.

• Venue: Proper venue is the county where the cause of action arose or where defendant resides. C.R.C.P. 98.

• Arbitration: Parties may agree to binding arbitration; some healthcare agreements include arbitration clauses.

This template is specific to Colorado law. Medical malpractice claims in Colorado have strict certificate of review requirements and damage caps. Always verify current law and consult with qualified Colorado medical malpractice counsel.