DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF FLORIDA

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

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 - PRE-SUIT NOTICE PURSUANT TO FLA. STAT. SECTION 766.106
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 the mandatory pre-suit notice required by Florida Statutes Section 766.106 and includes the verified expert opinion required by Section 766.203.

I. FLORIDA-SPECIFIC LEGAL FRAMEWORK

A. Governing Law - Florida Medical Malpractice Act

This claim is governed by the Florida Medical Malpractice Act, Fla. Stat. Section 766.101 et seq., which establishes comprehensive requirements for medical malpractice actions in Florida.

B. Pre-Suit Notice and Investigation - MANDATORY

Under Fla. Stat. Section 766.106, a claimant MUST provide written notice of intent to initiate litigation at least 90 days before filing suit. Upon receipt of this notice:

1. The statute of limitations is tolled for 90 days;
2. The prospective defendant has 90 days to conduct an investigation;
3. The defendant must respond with a rejection, offer to settle, or offer to arbitrate; and
4. Informal discovery is permitted during this period.

THIS LETTER CONSTITUTES SUCH NOTICE. The 90-day pre-suit investigation period will expire on [Date 90 days from this letter].

C. Verified Expert Medical Opinion - CRITICAL

Under Fla. Stat. Section 766.203, this notice must be accompanied by a verified written medical expert opinion. The corroborating opinion must:

1. Be provided by a medical expert as defined in Fla. Stat. Section 766.102;
2. State that there appears to be evidence of medical negligence;
3. Be verified by the expert; and
4. Be provided contemporaneously with the notice of intent.

The verified written medical expert opinion is attached hereto as Exhibit A.

D. Statute of Limitations and Repose

Statute of Limitations: Under Fla. Stat. Section 95.11(4)(b), actions for medical malpractice must be commenced within two (2) years from the time the incident is discovered or should have been discovered with the exercise of due diligence.

Discovery Rule: Florida applies a discovery rule. The limitations period begins when the plaintiff knew or should have known of the injury and its causal connection to the alleged malpractice. Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997).

Statute of Repose: Fla. Stat. Section 95.11(4)(b) imposes an absolute four (4) year statute of repose from the date of the incident. This extends to seven (7) years in cases of fraud, concealment, or intentional misrepresentation.

Minors: For minors, the limitations period is tolled and runs from the eighth birthday, but no action may be commenced after the child's eighth birthday. Fla. Stat. Section 95.11(4)(b).

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

E. Modified Comparative Fault

Florida follows modified comparative fault with a 51% bar. Under Fla. Stat. Section 768.81, a plaintiff may not recover damages if their fault is greater than 50%. If the plaintiff's fault is 50% or less, damages are reduced proportionally.

Note: Florida changed from pure comparative fault to modified comparative fault effective March 24, 2023.

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

F. Standard of Care Under Florida Law

Under Fla. Stat. Section 766.102(1), the prevailing professional standard of care for a given healthcare provider is that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar healthcare providers.

Similar Healthcare Provider: For specialists, the standard of care is based on what a reasonably prudent specialist in the same specialty would have done under similar circumstances.

G. Expert Witness Requirements - CRITICAL

Under Fla. Stat. Section 766.102, the expert witness must:

1. Be a healthcare provider who holds an active license;
2. Have devoted professional time during the 3 years preceding the incident to either:
   - Active clinical practice in the same specialty; or
   - Instruction of students in an accredited professional school; and
3. Have knowledge of the applicable standard of care.

Specialist Matching: If the defendant is a specialist, the expert must specialize in the same specialty as the defendant.

H. Damage Caps - CRITICAL

Under Fla. Stat. Section 766.118, Florida imposes caps on noneconomic damages:

Practitioners (non-catastrophic): $500,000 per claimant
Practitioners (catastrophic injury): $1,000,000 per claimant
Non-practitioner defendants/hospitals (non-catastrophic): $750,000 per claimant
Non-practitioner defendants/hospitals (catastrophic): $1,500,000 per claimant

Catastrophic Injury: Defined as permanent vegetative state, significant cognitive impairment, or permanent physical functional impairment rendering the patient dependent on others.

Wrongful Death: Different caps may apply in wrongful death cases.

[If applicable:] Based on the severity of our client's injuries, this case [involves/may involve] catastrophic injury under Florida law.

I. Informed Consent

Florida recognizes informed consent as a basis for medical malpractice liability under Fla. Stat. Section 766.103. A physician must disclose the nature of the procedure, risks, alternatives, and prognosis if the procedure is not performed.

The standard is what a reasonable patient in the plaintiff's position would have decided had adequate disclosure been made. Public Health Trust of Dade Cty. v. Wons, 541 So. 2d 96 (Fla. 1989).

J. Vicarious Liability

Hospital Liability: Florida hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So. 2d 55 (Fla. 4th DCA 1982).

Apparent Agency: Florida recognizes apparent agency liability when patients reasonably believe physicians are hospital employees. Roessler v. Novak, 858 So. 2d 1158 (Fla. 2d DCA 2003).

K. Arbitration

Voluntary Arbitration: Under Fla. Stat. Section 766.207, parties may agree to binding arbitration. If the claimant elects arbitration and the defendant rejects it, and the claimant later recovers more at trial, enhanced attorney's fees may apply.

L. Res Ipsa Loquitur

Florida recognizes res ipsa loquitur in medical malpractice cases where the injury is of a kind that does not ordinarily occur without negligence. Marrero v. Goldsmith, 486 So. 2d 530 (Fla. 1986).

M. Sovereign Immunity

Claims against state healthcare providers are subject to Fla. Stat. Section 768.28 (Florida sovereign immunity waiver) with damage caps of $200,000 per person and $300,000 per incident. Claims must be presented to the Department of Financial 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
• Adverse incident reports filed under Fla. Stat. Section 395.0197
• Risk management records
• 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 Florida law. Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005).

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 Fla. Stat. Section 766.102, [Defendant Healthcare Provider] was required to provide care in accordance with the prevailing professional standard of care recognized as acceptable and appropriate by reasonably prudent similar healthcare providers.

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] who meets the qualifications of Fla. Stat. Section 766.102. [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].

The verified written expert medical opinion is attached as Exhibit A.

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 Florida law, the plaintiff must prove that the defendant's negligence was a legal cause of the injury. Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015 (Fla. 1984).

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
• Aggravation of pre-existing condition

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]

Pursuant to Fla. Stat. Section 766.106(3), you have 90 days from receipt of this notice to:
1. Reject the claim;
2. Make a settlement offer; or
3. Make an offer to admit liability and submit to arbitration on damages.

The 90-day pre-suit period expires on [Date]. If we do not receive an acceptable response, we will proceed with filing suit.

VIII. REQUEST FOR INFORMAL DISCOVERY

Pursuant to Fla. Stat. Section 766.106(6), we request the following informal discovery:

1. Unsworn statements from [Healthcare Provider Names]
2. Complete medical records (if not already obtained)
3. All professional liability insurance policies applicable to this claim
4. Policy limits for each applicable policy
5. Any self-insured retention amounts
6. Excess/umbrella coverage information

IX. DOCUMENTATION ENCLOSED

• Exhibit A: Verified Written Medical Expert Opinion (as required by Fla. Stat. Section 766.203)
• 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 complied with all pre-suit requirements of the Florida Medical Malpractice Act, including provision of the verified written medical expert opinion required by Fla. Stat. Section 766.203.

We are prepared to litigate this matter through trial in the Circuit Court of [County] County, Florida if necessary. However, we believe early resolution serves all parties' interests and the purposes of Chapter 766.

Please respond within the 90-day period as required by Florida law.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: As noted above

cc: [Client Name]
File

FLORIDA MEDICAL MALPRACTICE PRACTICE NOTES

• 90-Day Pre-Suit Notice Required: Must include verified written medical expert opinion - this is jurisdictional.

• Strict Expert Requirements: Expert must be in same specialty with recent clinical practice or teaching experience.

• Damage Caps: $500,000-$1,000,000 for practitioners; $750,000-$1,500,000 for hospitals (catastrophic vs. non-catastrophic).

• Modified Comparative Fault: Changed from pure to modified (51% bar) effective March 24, 2023.

• Tolling: Statute of limitations tolled during 90-day pre-suit period.

• Informal Discovery: Either party may take unsworn statements during pre-suit period.

• Arbitration Option: Voluntary binding arbitration available under Chapter 766.

• Sovereign Immunity: Claims against state providers capped at $200,000/$300,000.

• Venue: Proper venue is the county where the cause of action accrued or where defendant resides. Fla. Stat. Section 47.011.

• Bad Faith: Failure to settle within policy limits may expose insurer to bad faith liability.

This template is specific to Florida law. Medical malpractice claims in Florida have extensive pre-suit requirements that must be strictly followed. Always verify current law and consult with qualified Florida medical malpractice counsel.