DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF HAWAII

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

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. HAWAII-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations and Repose

Statute of Limitations: Under HRS Section 657-7.3(a), claims for medical malpractice must be filed within two (2) years after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury.

Statute of Repose: HRS Section 657-7.3(b) imposes an absolute six (6) year statute of repose from the date of the act or omission causing the injury. No claim may be commenced more than six years after the act or omission, regardless of when the injury was discovered.

Discovery Rule: Hawaii applies a discovery rule that tolls the statute of limitations until the plaintiff knows or reasonably should know of the injury and its cause. Hays v. City & County of Honolulu, 81 Haw. 391 (1996).

Minors: For minors, the statute of limitations is tolled during minority. Claims must be brought within two years of reaching majority (age 18), but no more than six years after the negligent act.

Foreign Object Exception: The discovery rule applies with particular force in foreign object cases, allowing the limitations period to begin when the object is or should be discovered.

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. Medical Claim Conciliation Panel (MCCP) Requirement

CRITICAL PRE-SUIT REQUIREMENT: Under HRS Chapter 671, all medical malpractice claims must be submitted to the Medical Claim Conciliation Panel (MCCP) before a lawsuit can be filed.

HRS Section 671-12 requires:
1. Filing an inquiry with the MCCP before instituting any medical tort action;
2. The inquiry must contain specified information including the factual basis for the claim;
3. The MCCP process must be completed or waived before court action can proceed;
4. The MCCP has 12 months to complete its review.

Effect on Statute of Limitations: HRS Section 671-18 provides that the statute of limitations is tolled during the MCCP proceedings.

We hereby notify you that we [have filed / intend to file] an inquiry with the Medical Claim Conciliation Panel pursuant to HRS Section 671-12.

C. Certificate of Consultation Requirement

HRS Section 671-12.5 requires that any inquiry filed with the MCCP include a certificate stating that:
1. The claimant's attorney has consulted with a licensed physician who has expertise in the relevant specialty;
2. The physician has reviewed the medical records and other relevant information; and
3. The physician has concluded that there is a reasonable basis to believe that the care provided fell outside the accepted standard of medical care.

We certify that we have obtained such consultation and will provide the required certificate with our MCCP filing.

D. Comparative Negligence

Hawaii follows modified comparative negligence with a 51% bar rule under HRS Section 663-31. A plaintiff is barred from recovery if found to be 51% or more at fault. If less than 51% at fault, the plaintiff's recovery is reduced by their percentage of fault.

Our client bears no responsibility for the injuries sustained.

E. Damage Caps

Non-Economic Damage Cap: HRS Section 663-8.7 caps non-economic damages in medical malpractice cases at $375,000 per defendant. This cap:
- Applies to pain and suffering, emotional distress, loss of consortium, and similar non-economic damages;
- Is applied per defendant, not per occurrence;
- Does not apply to economic damages.

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

Punitive Damages: Punitive damages are available in Hawaii for willful or wanton misconduct. There is no statutory cap on punitive damages in medical malpractice cases.

F. Standard of Care

Hawaii applies a national standard of care rather than a locality rule. A physician must exercise that degree of skill, care, and learning expected of a reasonably prudent healthcare provider in the profession or class to which the defendant belongs, in the same or similar circumstances. Craft v. Peebles, 78 Haw. 287 (1995).

G. Informed Consent

Hawaii recognizes informed consent claims under both statutory and common law. A physician must disclose:
1. The diagnosis;
2. The nature of the proposed treatment;
3. The risks of the proposed treatment;
4. Alternative treatments and their risks;
5. The risks of no treatment.

Hawaii follows the patient-centered standard (materiality standard), requiring disclosure of information a reasonable patient would want to know in making the decision. Carr v. Strode, 79 Haw. 475 (1995).

H. Vicarious Liability

Hospital Liability: Hawaii hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Hospitals may also be liable for independent contractors under apparent agency theories. Kaho'ohanohano v. Dep't of Human Servs., 117 Haw. 262 (2008).

Corporate Negligence: Hawaii recognizes hospital corporate negligence for failures in credentialing, supervision, and equipment maintenance.

I. Res Ipsa Loquitur

Hawaii recognizes res ipsa loquitur in appropriate medical malpractice cases. The doctrine applies when:
1. The event ordinarily does not occur without negligence;
2. The instrumentality was in the exclusive control of the defendant; and
3. The plaintiff did not contribute to the injury.

Dairy Road Partners v. Island Ins. Co., 92 Haw. 398 (2000).

J. Loss of Chance Doctrine

Hawaii recognizes the loss of chance doctrine in medical malpractice cases. A plaintiff may recover for the loss of a chance of a better outcome, even if they cannot prove that the defendant's negligence more likely than not caused the ultimate harm. McKenzie v. Hawaii Permanente Med. Group, Inc., 98 Haw. 296 (2002). Damages are calculated based on the percentage of chance lost.

K. Government Immunity

Claims against the State of Hawaii and its agencies are governed by HRS Chapter 662 (State Tort Liability Act). The State has waived sovereign immunity for torts committed by state employees acting within the scope of employment.

• Claims must be filed within two years of the accrual of the claim;
• No punitive damages may be awarded against the State;
• Claims against county hospitals may be subject to additional notice requirements.

MCCP requirements still apply to claims against government healthcare facilities.

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
• 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
• Insurance policies and communications with insurers

Hawaii courts recognize the duty to preserve evidence once litigation is reasonably anticipated. Spoliation may result in adverse inference instructions and sanctions.

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].

IV. STANDARD OF CARE ANALYSIS

A. Applicable Standard of Care

Under Hawaii law, the standard of care applicable to [Defendant Healthcare Provider] is that degree of skill, care, and learning expected of a reasonably prudent healthcare provider in the same profession or class, 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]
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]

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. In accordance with HRS Section 671-12.5, this expert has reviewed the relevant medical records and 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.

C. Loss of Chance (If Applicable)

Pursuant to McKenzie v. Hawaii Permanente Med. Group, Inc., 98 Haw. 296 (2002), even if the defendant's negligence did not certainly cause our client's ultimate outcome, it substantially reduced [his/her] chance of a better result. Prior to the negligent care, our client had a [percentage]% chance of [survival / recovery / avoiding the adverse outcome]. As a result of the defendant's negligence, that chance was reduced to [percentage]%.

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

Under HRS Section 663-8.7, non-economic damages are capped at $375,000 per defendant in medical malpractice cases. Our client is entitled to compensation for:

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

Note: This cap applies per defendant; with multiple defendants, total non-economic recovery may exceed $375,000.

E. Punitive Damages (If Applicable)

[If conduct warrants:]

The conduct of [Defendant] rises to the level of willful or wanton misconduct, warranting punitive damages under Hawaii law.

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].

We prefer to resolve this matter without proceeding through the full MCCP process and subsequent litigation. Early settlement discussions are encouraged.

VIII. MCCP PROCESS NOTICE

We hereby provide notice that we [have filed / intend to file] an inquiry with the Medical Claim Conciliation Panel pursuant to HRS Chapter 671. We are prepared to participate in the MCCP process in good faith while also pursuing settlement negotiations directly.

The MCCP process does not preclude direct settlement negotiations, and we encourage you to engage in meaningful discussions to resolve this matter efficiently.

IX. 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

X. DOCUMENTATION ENCLOSED

• Medical records (relevant portions supporting claim)
• Medical bills and itemized statements
• Certificate of consultation (HRS Section 671-12.5)
• Employment and wage records
• Life care plan (if prepared)
• Economic loss analysis (if prepared)
• Photographs documenting injuries/condition
• HIPAA authorizations

XI. 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 consultation as required by Hawaii law.

We urge you to give this matter serious attention and to respond promptly. Early resolution will benefit all parties by avoiding the costs and delays of the MCCP process and litigation.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: [List]

cc: [Client Name]
[File]

HAWAII-SPECIFIC PRACTICE NOTES

MCCP Requirement (HRS Chapter 671): Must file inquiry with Medical Claim Conciliation Panel before filing lawsuit. Statute of limitations is tolled during MCCP proceedings.

Certificate of Consultation (HRS Section 671-12.5): Required with MCCP filing; must show consultation with physician in relevant specialty.

Non-Economic Damage Cap: $375,000 per defendant under HRS Section 663-8.7.

Loss of Chance: Hawaii recognizes loss of chance recovery per McKenzie v. Hawaii Permanente Med. Group, Inc., 98 Haw. 296 (2002).

Joint and Several Liability: HRS Section 663-10.9 modified joint and several liability; defendants are only jointly and severally liable if they acted in concert or if the plaintiff's total fault is 25% or less.

Periodic Payments: Courts may order periodic payments for future damages under HRS Section 663-10.

Collateral Source Rule: HRS Section 663-8.5 modified the collateral source rule to allow evidence of collateral source payments.

Wrongful Death: HRS Section 663-3 governs wrongful death claims with its own damage provisions.

Venue: Generally, where the defendant resides or where the act occurred. HRS Chapter 603.