DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF DELAWARE

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

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 Delaware Health Care Malpractice Insurance and Litigation Act, 18 Del. C. Section 6801 et seq.

I. DELAWARE-SPECIFIC LEGAL FRAMEWORK

A. Governing Law - Delaware Health Care Malpractice Insurance and Litigation Act

This claim is governed by the Delaware Health Care Malpractice Insurance and Litigation Act, 18 Del. C. Section 6801 et seq., which establishes the standards and procedures for medical malpractice actions in Delaware.

B. Statute of Limitations and Repose

Statute of Limitations: Under 18 Del. C. Section 6856(1), actions against healthcare providers must be commenced within two (2) years from the date upon which the injury occurred.

Discovery Rule: Delaware applies a limited discovery rule. When the injury is "inherently unknowable," the limitations period may be tolled until the plaintiff discovers or should have discovered the injury. Ewing v. Beck, 520 A.2d 653 (Del. 1987).

Statute of Repose: Under 18 Del. C. Section 6856(1), an absolute three (3) year statute of repose applies from the date of the act or omission upon which the claim is based.

Foreign Object Exception: The statute of limitations does not begin to run for claims involving a foreign object left in the body until the object is or should have been discovered. 18 Del. C. Section 6856(2).

Minors: For minors under six years of age, the action must be commenced within two years of the minor's sixth birthday. 18 Del. C. Section 6856(3).

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

Delaware follows modified comparative fault with a 51% bar. Under 10 Del. C. Section 8132, a plaintiff may not recover damages if their negligence was greater than the total negligence of all defendants. If the plaintiff's negligence is 50% or less, 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 Delaware Law

Under Delaware law, a healthcare provider must exercise that degree of skill and care ordinarily employed in the same or similar field of medicine by practitioners of similar training, experience, and expertise. Di Felice v. Aetna U.S. Healthcare, 346 F.3d 442 (3d Cir. 2003) (applying Delaware law).

Specialist Standard: Specialists are held to the standard of care of reasonably competent specialists in their field. Larrimore v. Homeopathic Hosp. Ass'n, 181 A.2d 573 (Del. 1962).

E. Affidavit of Merit Requirement - CRITICAL

Under 18 Del. C. Section 6853, an Affidavit of Merit is REQUIRED within 60 days of the filing of the defendant's answer. The affidavit must:

1. Be executed by an expert witness;
2. State that the expert has reviewed the case;
3. Identify each defendant by name;
4. State that there are reasonable grounds to believe each defendant was negligent; and
5. Be signed by a person qualified to render an opinion.

Failure to file the affidavit of merit may result in dismissal of the claim. Layton v. Allen, 246 A.2d 794 (Del. 1968).

Certification: We have consulted with a qualified medical expert who has reviewed the relevant medical records and has concluded that there are reasonable grounds to believe the defendant was negligent.

F. Expert Witness Requirements

Under Delaware law, expert testimony is required to establish the standard of care, its breach, and causation. The expert must:

1. Be licensed to practice medicine or have expertise in the relevant field;
2. Be familiar with the applicable standard of care; and
3. Have knowledge of the practices and procedures relevant to the case.

Burkhart v. Davies, 602 A.2d 56 (Del. 1991).

G. Damage Caps

Delaware does not impose caps on economic or noneconomic damages in medical malpractice cases.

Punitive Damages: Punitive damages are available in cases of gross negligence or willful misconduct but are not capped by statute.

Collateral Source Rule: Delaware follows the traditional collateral source rule. Evidence of payments from collateral sources is generally inadmissible.

H. Informed Consent

Delaware recognizes informed consent as a basis for medical malpractice liability. A physician must disclose material risks, alternatives, and the consequences of refusing treatment. Ortiz v. Shah, 905 A.2d 156 (Del. 2006).

The standard is what a reasonable patient would consider material to the decision. Sard v. Hardy, 379 A.2d 1014 (Md. 1977) (influential in Delaware).

I. Vicarious Liability

Hospital Liability: Delaware hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Christiana Care Health Servs., Inc. v. Crist, 956 A.2d 622 (Del. 2008).

Apparent Agency: Delaware recognizes apparent agency liability when patients reasonably believe physicians are hospital employees. Schagrin v. Wilmington Med. Ctr., Inc., 304 A.2d 61 (Del. Super. 1973).

J. Loss of Chance Doctrine

Delaware has recognized the loss of chance doctrine in limited circumstances. A plaintiff may recover for the loss of a chance of survival or better outcome caused by medical negligence, with damages proportional to the lost chance. Nations v. Christiana Care Health Servs., 2011 WL 233927 (Del. Super. Ct. 2011).

K. Res Ipsa Loquitur

Delaware recognizes res ipsa loquitur in medical malpractice cases where the injury is of a kind that does not ordinarily occur without negligence, the instrumentality was under the defendant's exclusive control, and the plaintiff did not contribute to the injury. Reybold Group, Inc. v. Chemprobe Techs., Inc., 721 A.2d 1267 (Del. 1998).

L. Government Immunity

Delaware Tort Claims Act: Claims against the State of Delaware and its employees are governed by the Delaware Tort Claims Act, 10 Del. C. Section 4001 et seq. Notice must be provided within one year, and damage caps apply ($300,000 per person, $500,000 per occurrence for state; $300,000 per person, $500,000 per occurrence for political subdivisions).

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 Delaware law. Sears, Roebuck & Co. v. Midcap, 893 A.2d 542 (Del. 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 Delaware law, [Defendant Healthcare Provider] was required to exercise that degree of skill and care ordinarily employed by practitioners of similar training, experience, and expertise in the same or similar field of medicine.

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 Delaware law, the plaintiff must prove that the defendant's negligence was a proximate cause of the injury. Culver v. Bennett, 588 A.2d 1094 (Del. 1991).

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)
• 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. Eastern 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 file the required Affidavit of Merit within 60 days of the defendant's answer as required by 18 Del. C. Section 6853.

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

ENCLOSURES: As noted above

cc: [Client Name]
File

DELAWARE MEDICAL MALPRACTICE PRACTICE NOTES

• Affidavit of Merit Required: Must file within 60 days of defendant's answer - failure may result in dismissal.

• No Damage Caps: Delaware does not cap compensatory damages in medical malpractice cases.

• Modified Comparative Fault: 51% bar - plaintiff cannot recover if more negligent than combined defendants.

• Short Repose Period: 3 years from act/omission - among shorter periods nationally.

• Loss of Chance: Delaware has recognized the doctrine in limited circumstances.

• Collateral Source Rule: Traditional rule applies - collateral source payments generally inadmissible.

• Governmental Immunity: Claims against state entities subject to Tort Claims Act with notice requirements and damage caps.

• Venue: Proper venue is the county where the defendant resides or where the cause of action arose. 10 Del. C. Section 541.

• Mediation: Courts may order mediation in medical malpractice cases.

• Medical Society Review: Delaware formerly had mandatory medical society review, but this has been eliminated.

This template is specific to Delaware law. Medical malpractice claims in Delaware have strict affidavit of merit requirements. Always verify current law and consult with qualified Delaware medical malpractice counsel.