DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF IOWA

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

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. IOWA-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations and Repose

Iowa Code Section 614.1(9) establishes specific time limitations for medical malpractice claims:

Statute of Limitations: An action for injury to a person arising out of the practice of a licensed healthcare provider must be brought within two (2) years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the injury and its cause.

Statute of Repose: Iowa Code Section 614.1(9)(a) provides an absolute six (6) year statute of repose from the date of the act or omission giving rise to the claim. No claim may be brought more than six years after the negligent act, regardless of when the injury was discovered.

Discovery Rule: Iowa applies a discovery rule that tolls the statute of limitations until the plaintiff knows or reasonably should have known of the injury and its cause. Langstraat v. Midwest Mutual Insurance Co., 217 N.W.2d 570 (Iowa 1974).

Foreign Object Exception: For claims involving foreign objects left in the body, the statute of limitations does not begin until the object is discovered or should have been discovered. The six-year repose period does not apply to foreign object cases. Iowa Code Section 614.1(9)(a)(3).

Minors: For minors, the statute of limitations is tolled during minority, but the six-year statute of repose generally applies. However, for minors under age 8 at the time of the act, the period does not expire until the minor reaches age 10. Iowa Code Section 614.8.

Fraud or Concealment: The statute of limitations may be tolled if the defendant fraudulently concealed the cause of action. Iowa Code Section 614.4.

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. Certificate of Merit Affidavit Requirement

Iowa Code Section 147.140 requires that any petition alleging malpractice against a licensed healthcare professional be accompanied by a certificate of merit affidavit:

Affidavit Requirements:
1. The claimant must attach a certificate of merit affidavit to the petition;
2. The affidavit must state that the claim has been reviewed by a qualified expert;
3. The expert must be a licensed healthcare provider who practices in the same or similar specialty;
4. The expert must have determined that there is reasonable cause to believe the defendant's conduct fell outside the applicable standard of care;
5. The affidavit must include a written statement from the expert identifying the breach and its relationship to the injury.

Expert Qualifications:
- Must be licensed to practice in the same area as the defendant;
- Must have devoted a majority of professional time in the last five years to active clinical practice or instruction.

Filing Deadline: The certificate must be filed with the petition. Failure to file is grounds for dismissal without prejudice, with the opportunity to refile with a proper certificate.

We certify that we have obtained a certificate of merit affidavit complying with Iowa Code Section 147.140 that will accompany any petition filed in this matter.

C. Comparative Fault

Iowa follows modified comparative fault under Iowa Code Section 668.3. A plaintiff is barred from recovery if the plaintiff's fault is greater than the combined fault of all defendants (more than 50%). If the plaintiff's fault is 50% or less, recovery is reduced proportionally.

Our client bears no responsibility for the injuries sustained.

D. Damage Caps

No Damage Caps: Iowa does not impose statutory caps on economic or non-economic damages in medical malpractice cases. Plaintiffs may recover the full amount of their damages as determined by the jury.

Punitive Damages: Iowa Code Section 668A.1 governs punitive damages. Punitive damages require proof by clear and convincing evidence of willful and wanton disregard for the rights or safety of another. Seventy-five percent of punitive damages (after attorney fees) must be paid to a civil reparations trust fund.

E. Standard of Care

Iowa applies a national standard of care for medical specialists. A healthcare provider must exercise the degree of skill, care, and learning possessed and used by other members of the profession in good standing, engaged in the same type of practice in similar localities (or nationally for specialists). Oswald v. LeGrand, 453 N.W.2d 634 (Iowa 1990).

For specialists, the standard is measured by what a reasonable specialist in that field would do, without geographic limitations.

F. Expert Witness Requirements

Iowa requires expert testimony to establish the standard of care, breach, and causation in medical malpractice cases. Iowa Rule of Evidence 5.702 governs expert testimony:

1. The expert must be qualified by knowledge, skill, experience, training, or education;
2. The testimony must assist the trier of fact;
3. The testimony must be based on sufficient facts or data;
4. The testimony must be the product of reliable principles and methods.

Iowa Code Section 147.139 specifies expert qualifications:
- The expert must be licensed to practice in the same area as the defendant;
- The expert must have devoted the majority of professional time to active clinical practice or instruction in the five years preceding the act giving rise to the claim.

G. Informed Consent

Iowa recognizes claims for lack of informed consent. A physician must disclose:
1. The nature of the proposed procedure;
2. The risks of the proposed procedure;
3. The alternatives;
4. The risks of the alternatives;
5. The risks of no treatment.

Iowa follows a patient-centered standard (materiality standard), requiring disclosure of information that a reasonable patient would consider material to making an informed decision. Pauscher v. Iowa Methodist Medical Center, 408 N.W.2d 355 (Iowa 1987).

H. Vicarious Liability

Hospital Liability: Iowa hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Hospitals may also be liable for independent contractor physicians under apparent agency theories if the hospital held out the physician as its agent and the patient relied on the hospital. Piper v. Epstein, 326 N.W.2d 319 (Iowa 1982).

Corporate Negligence: Iowa recognizes hospital corporate negligence for negligent credentialing, supervision, and maintenance of adequate facilities and staff.

I. Res Ipsa Loquitur

Iowa recognizes res ipsa loquitur in medical malpractice cases in appropriate circumstances. The doctrine applies when:
1. The injury is of a kind that ordinarily does not occur without negligence;
2. The instrumentality causing the injury was within the exclusive control of the defendant;
3. The plaintiff did not contribute to the injury.

Wiles v. Myerly, 210 N.W.2d 619 (Iowa 1973). When res ipsa loquitur applies, it permits (but does not require) an inference of negligence.

J. Loss of Chance Doctrine

Iowa recognizes the loss of chance doctrine in medical malpractice cases involving failure to diagnose or treat, particularly in cases where the patient's pre-existing condition already reduced survival or recovery chances below 50%. DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986).

Under Iowa's approach, when a defendant's negligence reduces a patient's chance of a better outcome, the plaintiff may recover damages proportional to the lost chance.

K. Government Immunity

Claims against state hospitals and government entities are governed by the Iowa Tort Claims Act, Iowa Code Chapter 669.

• Notice of claim must be filed within two years of the incident;
• The State Claims Commission has initial jurisdiction over claims against the State;
• Damages against the State are capped at $500,000 for each claim and $1,000,000 for any occurrence;
• Punitive damages are not recoverable against the State.

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

Iowa courts recognize a 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 Iowa law, the standard of care applicable to [Defendant Healthcare Provider] is that degree of skill, care, and learning possessed and used by other members of the profession in good standing, engaged in the same type of practice.

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 who meets the qualifications set forth in Iowa Code Section 147.139. [Dr./Expert Name] has concluded, to a reasonable degree of medical certainty, 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 Iowa's recognition of the loss of chance doctrine in DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986), 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. Our client is entitled to damages proportional to the lost chance.

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

Iowa imposes no caps on non-economic damages. 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 and wanton disregard for the rights and safety of our client, warranting punitive damages under Iowa Code Section 668A.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
• Certificate of merit affidavit (Iowa Code Section 147.140)
• 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 meets Iowa's certification 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 Iowa District Court, [County] County, and to pursue this matter through trial.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: [List]

cc: [Client Name]
[File]

IOWA-SPECIFIC PRACTICE NOTES

Certificate of Merit (Iowa Code Section 147.140): Must accompany petition with expert statement. Failure to file may result in dismissal without prejudice.

No Damage Caps: Iowa has no caps on economic or non-economic damages in medical malpractice cases.

Loss of Chance: Iowa recognizes loss of chance recovery per DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986).

Expert Qualifications (Iowa Code Section 147.139): Expert must be licensed in same area and have devoted majority of time to clinical practice or instruction in last five years.

Collateral Source Rule: Iowa Code Section 668.14 modified the collateral source rule; evidence of collateral source payments is admissible.

Wrongful Death: Iowa Code Section 611.20 governs wrongful death claims with specific damage provisions.

Prejudgment Interest: Available from the date of commencement of the action. Iowa Code Section 535.3.

Venue: County where cause of action arose or where defendant resides. Iowa R. Civ. P. 1.401.