DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF IDAHO

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

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. IDAHO-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

Idaho Code Section 5-219(4) provides that an action for professional malpractice, including medical malpractice, must be filed within two (2) years from the date of the occurrence, act, or omission complained of.

Discovery Rule: Idaho applies a discovery rule that tolls the statute of limitations. The two-year period runs from the time of the occurrence, act, or omission, or from the time the plaintiff knew or in the exercise of reasonable care should have known of the existence of the injury and the wrongful conduct. Stephens v. Stearns, 106 Idaho 249 (1984).

Foreign Object Exception: Idaho Code Section 5-219(4) contains a specific provision for foreign objects. When a foreign object has no therapeutic purpose and has been left in the patient's body, the limitation period does not begin until the object is, or reasonably should have been, discovered.

Minors: Under Idaho Code Section 5-230, the statute of limitations for minors under age six at the time of the act or omission is tolled until the child reaches age six, but in no event may an action be brought more than eight years after the act or omission.

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

B. Pre-Litigation Screening Panel

Idaho Code Section 6-1001 et seq. establishes a pre-litigation screening panel process for medical malpractice claims.

Requirements:
1. Before filing a civil action, a claimant must submit the claim to a pre-litigation screening panel;
2. The claim must be filed with the State Board of Medicine;
3. The panel consists of an attorney, a physician, and a layperson;
4. The panel issues an advisory opinion on whether the evidence supports the claim;
5. The panel's findings are admissible at trial.

Effect on Statute of Limitations: The statute of limitations is tolled during the pendency of the pre-litigation screening panel proceedings. Idaho Code Section 6-1005.

Waiver: The panel process may be waived by written consent of all parties.

We hereby notify you that we [have filed / intend to file] a claim with the Idaho pre-litigation screening panel pursuant to Idaho Code Section 6-1001.

C. Comparative Negligence

Idaho follows modified comparative negligence with a 50% bar rule under Idaho Code Section 6-801. A plaintiff is barred from recovery if their negligence was as great as the negligence of the person against whom recovery is sought (50% or more at fault). If less than 50% at fault, the plaintiff's recovery is reduced proportionally.

Our client bears no responsibility for the injuries sustained.

D. Damage Caps

Non-Economic Damage Cap: Idaho Code Section 6-1603 imposes a cap on non-economic damages in personal injury actions, including medical malpractice. The cap is $250,000, adjusted annually for inflation. As of [current year], the adjusted cap is approximately $[current adjusted amount].

Exceptions: The cap does not apply to:
- Wrongful death claims (separate wrongful death damages apply);
- Cases involving willful or reckless conduct.

Economic Damages: There is no cap on economic damages (medical expenses, lost wages, etc.).

Punitive Damages: Idaho Code Section 6-1604 caps punitive damages at the greater of $250,000 or three times the compensatory damages awarded, whichever is greater.

E. Standard of Care

Idaho applies a community standard of care with consideration of available facilities. Under Gubler v. Boe, 120 Idaho 294 (1991), the standard is that degree of skill, care, and learning expected of a reasonably prudent health care provider in the same community, acting in the same or similar circumstances.

The "same community" refers to the area from which patients would be expected to come to the defendant's practice. For specialists, the standard is measured against those in the same specialty.

F. Expert Witness Requirements

Idaho Code Section 6-1012 and 6-1013 set forth expert witness requirements:

1. Expert testimony is required to establish the local standard of care unless res ipsa loquitur applies;
2. The expert must be familiar with the standard of care in the same community or a similar community;
3. The expert must have actual knowledge of the applicable standard of care.

Idaho Code Section 6-1013 provides that the applicable standard of care is established by expert testimony of a person qualified by knowledge, skill, experience, training, or education.

G. Informed Consent

Idaho recognizes claims for lack of informed consent. Under Idaho case law, a physician has a duty to disclose:
1. The diagnosis;
2. The nature and purpose of the proposed treatment;
3. The material risks;
4. The alternatives;
5. The prognosis with and without treatment.

Idaho follows the professional standard (physician-based standard), requiring disclosure of what a reasonable physician would disclose under similar circumstances. Sherwood v. Carter, 119 Idaho 246 (1991).

H. Vicarious Liability

Hospital Liability: Idaho 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 or ostensible agency theories where the hospital held out the physician as its agent. Jones v. HealthSouth Treasure Valley Hosp., 147 Idaho 109 (2009).

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

I. Res Ipsa Loquitur

Idaho recognizes res ipsa loquitur in medical malpractice cases in limited 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 injury was not due to any action by the plaintiff.

When res ipsa loquitur applies, expert testimony on the standard of care may not be required. Maletta v. United States, 389 F. Supp. 1377 (D. Idaho 1975).

J. Loss of Chance Doctrine

Idaho has not definitively adopted the loss of chance doctrine. Traditional causation principles requiring "more likely than not" causation remain the standard. However, courts have not foreclosed the possibility of recognizing the doctrine in appropriate cases.

K. Government Immunity

Claims against state hospitals and public entities are governed by the Idaho Tort Claims Act, Idaho Code Section 6-901 et seq.

• Notice of claim must be filed within 180 days of the incident;
• The State has 90 days to respond;
• Damages against the State are capped at $500,000 per 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

Idaho 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 Idaho Code Sections 6-1012 and 6-1013, the standard of care applicable to [Defendant Healthcare Provider] is that degree of skill, care, and learning expected of a reasonably prudent health care provider in the community in which [he/she] practices, or in a similar community, acting 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 who is familiar with the applicable standard of care. [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

Under Idaho Code Section 6-1603, non-economic damages are subject to a cap of $250,000 (adjusted for inflation). 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)

Current Adjusted Cap (as of [year]): $[adjusted amount]

E. Punitive Damages (If Applicable)

[If conduct warrants:]

The conduct of [Defendant] rises to the level of oppressive, fraudulent, wanton, malicious, or outrageous conduct, warranting punitive damages under Idaho Code Section 6-1604.

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 pre-litigation screening panel process and subsequent litigation.

VIII. PRE-LITIGATION SCREENING PANEL NOTICE

We hereby provide notice that we [have filed / intend to file] a claim with the Idaho pre-litigation screening panel pursuant to Idaho Code Section 6-1001. We are prepared to participate in the panel process in good faith while also pursuing settlement negotiations directly.

The parties may waive the panel process by mutual written consent. We invite you to consider this option if settlement discussions progress favorably.

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
• 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 analysis that meets Idaho's requirements.

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 pre-litigation screening panel process and litigation.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: [List]

cc: [Client Name]
[File]

IDAHO-SPECIFIC PRACTICE NOTES

Pre-Litigation Screening Panel (Idaho Code Section 6-1001): Required before filing suit. Panel findings are admissible at trial. May be waived by mutual consent.

Non-Economic Damage Cap (Idaho Code Section 6-1603): $250,000, indexed for inflation.

Community Standard: Idaho uses a community standard of care, not a national standard. Expert must be familiar with the relevant community standard.

Expert Requirements (Idaho Code Section 6-1013): Expert must have actual knowledge of the applicable standard of care in the same or similar community.

Notice for Government Claims: 180 days under the Idaho Tort Claims Act (Idaho Code Section 6-905).

Collateral Source Rule: Idaho Code Section 6-1606 modified the collateral source rule; evidence of collateral source payments is admissible.

Wrongful Death: Idaho Code Section 5-311 governs wrongful death claims with specific damage provisions.

Venue: County where defendant resides or where cause of action arose. Idaho Code Section 5-404.