DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF ILLINOIS

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

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. ILLINOIS-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations and Repose

735 ILCS 5/13-212 establishes specific time limitations for medical malpractice claims:

Statute of Limitations: An action for medical malpractice must be commenced within two (2) years after the date on which the claimant knew, or through reasonable diligence should have known, of the injury and that the injury was wrongfully caused.

Statute of Repose: No action may be brought more than four (4) years after the date on which the act or omission occurred, regardless of when the injury was discovered. This is an absolute bar to claims.

Discovery Rule: Illinois applies a discovery rule under which the limitations period begins when the plaintiff knows or reasonably should know both (1) that an injury has occurred and (2) that the injury was wrongfully caused. Witherell v. Weimer, 85 Ill. 2d 146 (1981).

Minors: For persons under 18 years of age, the limitation period does not begin until they reach majority. However, in no event shall the action be brought more than 8 years after the date of the act or omission giving rise to the injury. 735 ILCS 5/13-212(b).

Persons Under Legal Disability: The statute is tolled during periods of legal disability, but the 4-year repose period is generally an absolute bar with limited exceptions.

Fraudulent Concealment: The limitations period may be tolled if the defendant fraudulently concealed the cause of action. 735 ILCS 5/13-215.

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. Affidavit of Merit Requirement

735 ILCS 5/2-622 requires that any complaint alleging medical malpractice be accompanied by an affidavit and a written report:

Affidavit Requirements:
1. An affidavit, attached to the complaint, declaring that the plaintiff has consulted with a health professional who:
- Has expertise in the relevant medical specialty;
- Practices in or has retired from active practice within the last six years;
- Has determined in a written report that there is reasonable and meritorious cause for filing the action.

Written Report Requirements:
2. A written report from the health professional setting forth:
- The reasons for the determination that there is reasonable and meritorious cause;
- The expert's opinion that the defendant breached the standard of care.

Filing: The report must be attached to the complaint or filed within 90 days after filing with court approval.

Failure to Comply: Failure to file the required affidavit and report is grounds for dismissal with prejudice. However, courts may grant extensions for good cause.

We certify that we have obtained the required affidavit and written report complying with 735 ILCS 5/2-622 that will accompany any complaint filed in this matter.

C. Comparative Negligence

Illinois follows modified comparative negligence under 735 ILCS 5/2-1116. A plaintiff is barred from recovery if found to be more than 50% at fault. If 50% or less at fault, the plaintiff's recovery is reduced by their percentage of fault.

Our client bears no responsibility for the injuries sustained.

D. Damage Caps

Non-Economic Damage Caps: The Illinois Supreme Court in Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217 (2010), declared the statutory caps on non-economic damages in medical malpractice cases unconstitutional as a violation of the separation of powers doctrine under the Illinois Constitution.

There are currently no caps on non-economic damages in Illinois medical malpractice cases.

Punitive Damages: Punitive damages are generally not available in ordinary negligence cases in Illinois but may be available in cases of willful and wanton conduct. There is no statutory cap on punitive damages.

E. Standard of Care

Illinois applies a national standard of care for specialists and a similar community standard for general practitioners. A physician must exercise the same degree of knowledge, skill, and ability as an ordinarily careful physician would exercise under the same or similar circumstances. Walski v. Tiesenga, 72 Ill. 2d 249 (1978).

The locality rule has been largely abandoned in Illinois, particularly for specialists who are held to a national standard.

F. Expert Witness Requirements

Illinois requires expert testimony to establish the standard of care, breach, and causation in medical malpractice cases. Under Illinois Supreme Court Rule 213, expert witnesses must be disclosed in accordance with discovery rules.

Expert Qualifications: The expert must be a licensed health professional with knowledge, training, and experience sufficient to provide a reliable opinion on the standard of care.

G. Informed Consent

Illinois recognizes claims for lack of informed consent under both statutory and common law. A physician must disclose:
1. The nature of the patient's condition;
2. The nature and purpose of the proposed treatment;
3. The risks and consequences of the proposed treatment;
4. The alternatives to the proposed treatment;
5. The risks of not receiving the treatment.

Illinois follows a patient-centered standard (materiality standard) requiring disclosure of information material to a reasonable patient's decision. Coryell v. Smith, 274 Ill. App. 3d 543 (1995).

H. Vicarious Liability

Hospital Liability: Illinois hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Under Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993), hospitals may also be liable for independent contractor physicians under apparent agency when:
1. The hospital held out the physician as its agent;
2. The patient relied on the hospital to provide care;
3. The patient accepted the physician's care in reliance on the hospital.

Corporate Negligence: Illinois recognizes hospital corporate negligence under Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326 (1965), the landmark case establishing hospital corporate liability for:
- Negligent credentialing;
- Failure to supervise medical staff;
- Failure to formulate and enforce adequate policies;
- Failure to maintain adequate facilities and equipment.

I. Res Ipsa Loquitur

Illinois recognizes res ipsa loquitur in medical malpractice cases in appropriate circumstances. The doctrine applies when:
1. The injury would not ordinarily occur in the absence of negligence;
2. The agency or instrumentality causing the injury was within the exclusive control of the defendant;
3. The injury was not due to any voluntary action by the plaintiff.

Imig v. Beck, 115 Ill. 2d 18 (1986). The doctrine permits an inference of negligence, not a presumption, and expert testimony may still be required.

J. Loss of Chance Doctrine

Illinois 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 was a proximate cause of the injury. Holton v. Memorial Hospital, 176 Ill. 2d 95 (1997).

K. Government Immunity

Claims against public hospitals and government entities are governed by the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq.

• Claims must be filed within one year of the injury;
• Damages against local public entities are capped at various levels;
• Certain immunities apply to discretionary acts.

The State Lawsuit Immunity Act, 745 ILCS 5/1, provides that the State may be sued in the Court of Claims for medical malpractice by state employees.

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

Illinois courts recognize a duty to preserve evidence once litigation is reasonably anticipated. Shimanovsky v. General Motors Corp., 181 Ill. 2d 112 (1998). Spoliation may result in adverse inference instructions, sanctions, and potentially an independent tort claim.

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 Illinois law, the standard of care applicable to [Defendant Healthcare Provider] is that degree of knowledge, skill, and ability as an ordinarily careful physician in the same or similar specialty would exercise under 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 has prepared a written report as required by 735 ILCS 5/2-622. [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. Under Illinois law, the defendant's negligence need not be the sole cause but must be a substantial factor in bringing about the injury.

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 Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217 (2010), there is no cap on non-economic damages in Illinois medical malpractice cases. Our client is entitled to full compensation for:

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

E. 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
• Affidavit and written report (735 ILCS 5/2-622)
• 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 Illinois's certification requirements under 735 ILCS 5/2-622.

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 Circuit Court of Illinois, [County] County, and to pursue this matter through trial.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
Illinois ARDC No. [Number]
Attorney for [Client Name]

ENCLOSURES: [List]

cc: [Client Name]
[File]

ILLINOIS-SPECIFIC PRACTICE NOTES

Affidavit of Merit (735 ILCS 5/2-622): Must accompany complaint with written expert report. Failure to comply is grounds for dismissal with prejudice.

No Damage Cap: Following Lebron v. Gottlieb, Illinois has no cap on non-economic damages in medical malpractice cases.

Darling Doctrine: Illinois is the birthplace of hospital corporate negligence liability. Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326 (1965).

Medical Studies Act: 735 ILCS 5/8-2101 et seq. protects certain peer review and quality assurance information from discovery.

Collateral Source Rule: Illinois maintains the collateral source rule; evidence of insurance or other benefits is generally inadmissible.

Wrongful Death: 740 ILCS 180/1 (Wrongful Death Act) and 755 ILCS 5/27-6 (Survival Act) govern wrongful death and survival claims.

Prejudgment Interest: Generally not available in personal injury cases in Illinois.

Venue: County where transaction occurred or where defendant resides. 735 ILCS 5/2-101.