DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF GEORGIA

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

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.

I. GEORGIA-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations and Repose

Under Georgia law, medical malpractice claims are governed by specific statutory time limitations:

Statute of Limitations: O.C.G.A. Section 9-3-71(a) provides that actions for medical malpractice must be brought within two (2) years from the date on which the negligent or wrongful act or omission occurred.

Statute of Repose: O.C.G.A. Section 9-3-71(b) imposes an absolute five (5) year statute of repose from the date of the negligent act, regardless of discovery. This outer limit bars claims even if the injury was not and could not have been discovered within that period.

Discovery Rule: Georgia recognizes a limited discovery rule. The statute of limitations may be tolled where the injury could not have been discovered through reasonable diligence. However, the five-year statute of repose is an absolute bar. Kaminer v. Canas, 282 Ga. 830 (2007).

Foreign Object Exception: O.C.G.A. Section 9-3-72 provides that where a foreign object has been left in a patient's body, the action must be brought within one year of the date the object is discovered or reasonably should have been discovered.

Minors: For minors under age five, the statute of limitations is tolled until the child reaches age five, but in no event may an action be brought more than five years after the negligent act. O.C.G.A. Section 9-3-73.

Based on our analysis:
- Date of negligent care: [Date]
- Date of discovery (if applicable): [Date]
- Statute of limitations expires: [Date]
- Statute of repose expires: [Date]

B. Expert Affidavit Requirement

O.C.G.A. Section 9-11-9.1 mandates that the complaint in any action alleging medical malpractice be accompanied by an expert affidavit. This affidavit must:

1. Be prepared by a competent expert who meets the qualification requirements of O.C.G.A. Section 24-7-702;
2. Set forth specifically at least one negligent act or omission claimed to exist;
3. Set forth the factual basis for each claimed negligent act or omission;
4. State that the affiant has reviewed the records and other materials necessary to form an opinion; and
5. Conclude that, based upon the review, in the affiant's opinion, at least one negligent act or omission occurred.

We certify that we have obtained an expert affidavit complying with O.C.G.A. Section 9-11-9.1 that will accompany any complaint filed in this matter.

Expert Qualifications: Under O.C.G.A. Section 24-7-702, the expert must have sufficient education, training, and experience to offer the opinion, and must demonstrate actual professional knowledge of the standard of care applicable to the defendant.

C. Comparative Negligence

Georgia follows modified comparative negligence with a 50% bar rule under O.C.G.A. Section 51-12-33. A plaintiff is barred from recovery if found to be 50% or more at fault. If less than 50% at fault, the plaintiff's recovery is reduced by their percentage of fault.

In the present case, our client bears no responsibility for the injuries sustained.

D. Damage Caps

Non-Economic Damage Cap: Georgia's statutory cap on non-economic damages in medical malpractice cases (O.C.G.A. Section 51-13-1) was declared unconstitutional by the Georgia Supreme Court in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010), as a violation of the right to a jury trial under the Georgia Constitution.

Punitive Damages: Punitive damages in Georgia are generally capped at $250,000 unless the defendant acted with specific intent to cause harm or while under the influence of drugs or alcohol. O.C.G.A. Section 51-12-5.1(g). However, 75% of punitive damage awards (minus attorney fees and costs) must be paid to the State of Georgia. O.C.G.A. Section 51-12-5.1(e)(2).

E. Standard of Care

Georgia applies a national standard of care rather than a strict locality rule. Under O.C.G.A. Section 51-1-27, a physician must exercise the degree of care and skill ordinarily employed by the medical profession generally under similar conditions and like circumstances.

The locality of practice may be considered as one factor in determining the applicable standard, but Georgia courts have moved toward a national standard. Hawkins v. Greenberg, 220 Ga. App. 298 (1996).

F. Informed Consent

Georgia recognizes a cause of action for lack of informed consent under O.C.G.A. Section 31-9-6.1. A physician has a duty to disclose:

1. The diagnosis;
2. The nature and purpose of the proposed treatment;
3. The material risks of the proposed treatment;
4. The likelihood of success;
5. Available alternatives and their risks; and
6. The prognosis if the proposed treatment is declined.

Georgia follows the professional standard (physician-based standard) for informed consent disclosure. Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296 (2000).

G. Vicarious Liability

Hospital Liability: Georgia hospitals may be held vicariously liable for the negligence of their employees under the doctrine of respondeat superior. For independent contractor physicians, hospitals may still be liable under apparent agency or ostensible agency theories where the hospital holds out the physician as its agent. Candler General Hospital, Inc. v. McNorrill, 182 Ga. App. 107 (1987).

Corporate Negligence: Georgia recognizes hospital corporate negligence for failures in credentialing, supervision, and maintaining adequate policies and procedures. Mitchell County Hospital Authority v. Joiner, 229 Ga. App. 140 (1997).

H. Res Ipsa Loquitur

Georgia recognizes the doctrine of res ipsa loquitur in medical malpractice cases 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 in the exclusive control of the defendant; and
3. The injury was not due to any voluntary action by the plaintiff.

Piedmont Hospital, Inc. v. Reserve Life Ins. Co., 136 Ga. App. 660 (1975).

I. Loss of Chance Doctrine

Georgia does not recognize the loss of chance doctrine as a separate theory of recovery. The plaintiff must prove, by a preponderance of the evidence, that the defendant's negligence more likely than not caused the injury. Zwiren v. Thompson, 276 Ga. 498 (2003).

J. Government Immunity

Claims against state hospitals and public healthcare facilities are governed by the Georgia Tort Claims Act, O.C.G.A. Section 50-21-20 et seq. The Act waives sovereign immunity for negligent acts of state officers and employees but caps liability at:
- $1,000,000 per person
- $3,000,000 per occurrence

Claims must be filed with the Office of the State Treasurer within 12 months of the incident. O.C.G.A. Section 50-21-26.

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 showing modifications)
• Nursing notes, medication administration records, and flow sheets
• All diagnostic imaging studies (X-rays, CT scans, MRIs, ultrasounds) and reports
• Laboratory results and pathology reports
• Operative reports and anesthesia records
• Consultation notes
• Informed consent documents
• Patient correspondence and communications
• Incident/occurrence reports
• Peer review and quality assurance records (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 and calibration records
• Training records for involved personnel
• Any recorded statements or interviews
• Insurance policies and communications with insurers

Georgia recognizes a duty to preserve evidence once litigation is reasonably anticipated. Phillips v. Harmon, 297 Ga. 386 (2015). Spoliation may result in adverse inference instructions, sanctions, and independent tort claims.

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]
- [Relevant family history]
- [Relevant social history]

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]

[Continue with detailed chronology]

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]. Prior to this time, [describe why earlier discovery was not possible].

IV. STANDARD OF CARE ANALYSIS

A. Applicable Standard of Care

Under O.C.G.A. Section 51-1-27 and Georgia case law, the standard of care applicable to [Defendant Healthcare Provider] is that degree of care and skill ordinarily employed by the medical profession generally under similar conditions and like circumstances.

Based on our expert's analysis, the applicable standard of care required [Defendant] to:

1. [Standard 1]
2. [Standard 2]
3. [Standard 3]
4. [Standard 4]
5. [Standard 5]

B. Breaches of the Standard of Care

[Defendant Healthcare Provider] breached the applicable standard of care in the following specific ways:

Breach 1: [Detailed description of breach]
- What the standard required: [Describe]
- What the provider did or failed to do: [Describe]
- How this deviated from the standard: [Describe]

Breach 2: [Detailed description of breach]

Breach 3: [Continue as needed]

C. Expert Opinion Summary

We have retained [Expert Name, M.D.], a board-certified [Specialty] physician who meets the expert qualification requirements of O.C.G.A. Section 24-7-702. [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 [describe injuries/damages];
3. Had appropriate care been rendered, [describe what would have happened].

V. CAUSATION

A. Factual Causation

But for the defendant's breach of the standard of care, our client would not have suffered the injuries described herein.

B. Proximate Causation

The injuries sustained by our client were foreseeable consequences of the defendant's negligence.

VI. INJURIES AND DAMAGES

A. Physical Injuries Caused by Malpractice

As a direct and proximate result of the defendant's medical negligence, our client has suffered:

Primary Injuries:
- [Injury 1]
- [Injury 2]
- [Injury 3]

Secondary Complications:
- [Complication 1]
- [Complication 2]

Current Medical Status:
[Describe client's current condition, ongoing treatment needs, and prognosis]

B. Medical Expenses

Past Medical Expenses:

Future Medical Expenses:

C. Lost Earnings and Earning Capacity

Past Lost Wages: $[Amount]

Future Lost Earning Capacity: $[Amount]

D. Non-Economic Damages

Following Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010), there is no cap on non-economic damages in Georgia medical malpractice cases. Our client is entitled to full compensation for:

• Physical pain and suffering
• Emotional distress
• Loss of enjoyment of life
• Disfigurement/Physical impairment
• Loss of consortium (spouse's claim)

E. Punitive Damages (If Applicable)

[If conduct warrants:]

The conduct of [Defendant] rises to the level of willful misconduct, malice, fraud, wantonness, oppression, or conscious indifference to consequences, warranting punitive damages under O.C.G.A. Section 51-12-5.1.

F. Summary of Damages

VII. SETTLEMENT DEMAND

A. Demand Amount

Based upon the clear breach of the standard of care, the severity of our client's injuries, and the substantial economic and non-economic damages, we hereby demand:

$[DEMAND AMOUNT]

B. Time for Response

This demand will remain open for [30/45/60] days from the date of this letter, through and including [Expiration Date].

VIII. INSURANCE AND INDEMNIFICATION

We demand disclosure of:

• All professional liability insurance policies applicable to this claim
• Policy limits for each applicable policy
• Hospital/institutional liability coverage
• Any self-insured retention amounts
• Excess/umbrella coverage
• Any indemnification agreements between defendants

IX. DOCUMENTATION ENCLOSED

• Medical records (relevant portions supporting claim)
• Medical bills and itemized statements
• Expert affidavit (O.C.G.A. Section 9-11-9.1)
• Employment and wage records
• Life care plan (if prepared)
• Economic loss analysis (if prepared)
• Photographs documenting injuries/condition
• HIPAA authorizations

X. CONCLUSION

This case involves clear medical negligence that caused significant injuries to our client. The breach of the standard of care is supported by expert opinion that complies with Georgia's expert affidavit requirements.

We urge you to give this matter serious attention and to respond promptly. If we cannot resolve this matter, we are prepared to file suit in the Superior Court of Georgia, [County] County, and to pursue this matter through trial.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: [List]

cc: [Client Name]
[File]

GEORGIA-SPECIFIC PRACTICE NOTES

Expert Affidavit (O.C.G.A. Section 9-11-9.1): Must accompany complaint. Failure to file is subject to dismissal, though courts may grant 45-day extension for cure under certain circumstances.

No Damage Cap: Following Nestlehutt, Georgia has no cap on non-economic damages in medical malpractice cases.

Apology Statute: O.C.G.A. Section 24-4-416 provides that statements of apology or benevolence by healthcare providers are inadmissible as evidence of liability.

Periodic Payments: O.C.G.A. Section 51-12-8 allows courts to order periodic payments for future damages in excess of $250,000.

Wrongful Death: O.C.G.A. Section 51-4-2 governs wrongful death claims. The full value of the life of the decedent is recoverable without deduction.

Ante Litem Notice (Government Claims): For claims against state entities, ante litem notice must be given within 12 months under O.C.G.A. Section 50-21-26.

Venue: Medical malpractice actions must be brought in the county where the negligent act occurred or where the defendant resides. O.C.G.A. Section 9-10-31.