DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF INDIANA

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

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.

PLEASE NOTE: We [have filed / intend to file] a proposed complaint with the Indiana Department of Insurance to initiate the Medical Review Panel process as required by the Indiana Medical Malpractice Act.

I. INDIANA-SPECIFIC LEGAL FRAMEWORK

A. Indiana Medical Malpractice Act Overview

Indiana has a comprehensive statutory scheme governing medical malpractice claims under the Indiana Medical Malpractice Act (IMMA), Ind. Code Section 34-18-1-1 et seq. This Act applies to claims against "qualified" healthcare providers who have complied with the Act's requirements.

Qualified Healthcare Providers: A healthcare provider is "qualified" under the Act if they have:
1. Filed proof of financial responsibility with the Indiana Department of Insurance;
2. Paid the surcharge to the Patient's Compensation Fund.

Effect of Qualification: Qualified providers are entitled to:
- Total damage cap protection;
- Mandatory Medical Review Panel process;
- Patient's Compensation Fund coverage for awards exceeding $500,000.

B. Statute of Limitations

Ind. Code Section 34-18-7-1 provides that a claim for medical malpractice must be filed within two (2) years from the date of the act, omission, or neglect complained of.

Discovery Rule: The Indiana Supreme Court recognizes a discovery rule. The statute of limitations may be tolled if the plaintiff could not, by the exercise of ordinary diligence, have discovered the malpractice within the two-year period. Van Dusen v. Stotts, 712 N.E.2d 491 (Ind. 1999).

Continuing Treatment Doctrine: Indiana recognizes the continuing treatment doctrine, which may toll the statute while the physician-patient relationship continues and the condition is being treated.

Minors: For minors under the age of 6, the statute of limitations is tolled until the child reaches age 8, after which the two-year limitation period applies. Ind. Code Section 34-18-7-2.

Incapacity: The statute is tolled for persons under legal disabilities, subject to specific limitations.

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

C. Medical Review Panel Requirement

CRITICAL REQUIREMENT: Ind. Code Section 34-18-8-4 requires that no action against a qualified healthcare provider may be commenced in court before:
1. A proposed complaint has been filed with the Indiana Department of Insurance;
2. An opinion has been rendered by a Medical Review Panel; or
3. The panel process has been waived.

Medical Review Panel Process:
1. The claimant files a proposed complaint with the Department of Insurance;
2. A panel of three healthcare providers (same specialty) is selected;
3. Each party may select one panelist; the third is selected by the other two;
4. The panel reviews evidence and submissions from both parties;
5. The panel issues an opinion on whether the defendant met the standard of care.

Panel Opinion: The opinion is admissible at trial but is not binding on the jury. The panel must answer:
1. Whether the evidence supports the conclusion that the defendant failed to meet the applicable standard of care;
2. Whether such failure was a factor in the resultant damages.

Timeline: There is no statutory deadline for the panel to render an opinion, and the process often takes 1-3 years.

Effect on Statute of Limitations: The statute of limitations is tolled from the date of filing with the Department of Insurance until 90 days after the panel opinion is received.

We hereby notify you that we [have filed / intend to file] a proposed complaint with the Indiana Department of Insurance.

D. Comparative Negligence

Indiana follows modified comparative fault under Ind. Code Section 34-51-2-6. A plaintiff's recovery is reduced by their percentage of fault and is barred entirely if the plaintiff's fault is greater than the combined fault of all defendants (more than 50%).

Our client bears no responsibility for the injuries sustained.

E. Damage Caps

Total Damage Cap: Ind. Code Section 34-18-14-3 imposes a cap on total recoverable damages in medical malpractice cases against qualified healthcare providers:

• For acts occurring on or after July 1, 2019: $1,800,000 total damages
• For acts occurring July 1, 2017 through June 30, 2019: $1,650,000
• For acts occurring July 1, 2013 through June 30, 2017: $1,250,000

Provider Liability Cap: Individual qualified healthcare providers are liable for a maximum of $500,000 per occurrence. Ind. Code Section 34-18-14-3(b).

Patient's Compensation Fund: If damages exceed $500,000, the excess (up to the total cap) is paid from the Patient's Compensation Fund, funded by surcharges paid by qualified providers.

Constitutionality: The damage cap has been upheld as constitutional by the Indiana Supreme Court. Johnson v. St. Vincent Hospital, 273 Ind. 374 (1980).

No Separate Non-Economic Cap: Unlike some states, Indiana does not have a separate cap for non-economic damages; the cap applies to total damages.

F. Standard of Care

Indiana applies a national standard of care for medical specialists. A physician must exercise that degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class to which the physician belongs, acting under the same or similar circumstances. Vergara v. Doan, 593 N.E.2d 185 (Ind. 1992).

The Indiana Supreme Court in Vergara v. Doan abandoned the strict locality rule in favor of a national standard for specialists.

G. Expert Witness Requirements

Indiana requires expert testimony to establish the standard of care, breach, and causation in medical malpractice cases. Under Indiana Evidence Rule 702:

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

H. Informed Consent

Indiana recognizes claims for lack of informed consent. Under Culbertson v. Mernitz, 602 N.E.2d 98 (Ind. 1992), a physician must disclose:
1. The diagnosis;
2. The nature of the proposed treatment;
3. The risks of the proposed treatment;
4. The alternatives and their risks;
5. The expected outcome.

Indiana follows the professional standard (physician-based disclosure), requiring disclosure of what a reasonable physician would disclose under the circumstances.

I. Vicarious Liability

Hospital Liability: Indiana hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. For independent contractor physicians, hospitals may be liable under apparent agency if the hospital held out the physician as its employee. Sword v. NKC Hospitals, Inc., 714 N.E.2d 142 (Ind. 1999).

Corporate Negligence: Indiana has not definitively adopted the Darling doctrine of hospital corporate negligence, but courts have recognized hospital liability for negligent credentialing and supervision.

J. Res Ipsa Loquitur

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

Bourne v. Washburn, 441 N.E.2d 1022 (Ind. Ct. App. 1982).

K. Loss of Chance Doctrine

Indiana does not recognize the loss of chance doctrine as a separate theory of recovery. Traditional causation principles requiring proof by a preponderance of the evidence apply. Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000).

L. Government Immunity

Claims against government-owned hospitals are generally governed by the Indiana Tort Claims Act, Ind. Code Section 34-13-3-1 et seq.

• Claims must be filed within 270 days (with limited exceptions);
• Governmental entities are subject to specific immunities;
• Damages are capped at $700,000 per person and $5,000,000 per occurrence.

However, if a government hospital is a qualified provider under the Medical Malpractice Act, the IMMA procedures may apply.

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

Indiana 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 Indiana law, the standard of care applicable to [Defendant Healthcare Provider] is that degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class, acting 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. [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.

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

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)

E. Summary of Damages

Note on Damage Cap: Under Ind. Code Section 34-18-14-3, total recoverable damages against qualified healthcare providers are capped at $1,800,000 (for acts occurring after July 1, 2019). The individual provider's liability is capped at $500,000, with excess amounts (up to the total cap) paid from the Patient's Compensation Fund.

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 damages incurred, we hereby demand:

$[DEMAND AMOUNT]

[If demanding policy limits or cap:]

Given the severity of our client's injuries and damages that [approach / exceed] the statutory cap, we demand the individual provider(s) tender their maximum liability of $500,000 and that the Patient's Compensation Fund be placed on notice regarding the excess.

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 encourage early settlement discussions to avoid the delay and expense of the Medical Review Panel process.

VIII. MEDICAL REVIEW PANEL NOTICE

We hereby provide notice that we [have filed / intend to file] a proposed complaint with the Indiana Department of Insurance pursuant to Ind. Code Section 34-18-8-4.

The Medical Review Panel process, while required, does not preclude direct settlement negotiations. We encourage you to engage in meaningful discussions to resolve this matter efficiently without awaiting the panel's opinion.

IX. INSURANCE AND INDEMNIFICATION

We demand disclosure of:

• Confirmation of qualified provider status under the Indiana Medical Malpractice Act
• 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

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 will be supported by expert testimony that meets Indiana's requirements.

We urge you to give this matter serious attention and to respond promptly. Early resolution will benefit all parties by avoiding the delay of the Medical Review Panel process and litigation.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: [List]

cc: [Client Name]
[File]
[Indiana Department of Insurance - upon filing]

INDIANA-SPECIFIC PRACTICE NOTES

Medical Review Panel (Ind. Code Section 34-18-8-4): Mandatory for claims against qualified providers. Panel opinion is admissible but not binding.

Total Damage Cap: $1,800,000 for acts after July 1, 2019. Individual provider cap of $500,000 with Patient's Compensation Fund covering excess.

Qualified Provider Status: Verify whether defendant is a qualified provider under the IMMA, as this affects procedures and damage caps.

Statute Tolling: Statute is tolled during Medical Review Panel proceedings and for 90 days after panel opinion.

Patient's Compensation Fund: For awards exceeding $500,000, claims must be made against the Fund.

Periodic Payments: Ind. Code Section 34-18-14-7 permits periodic payments for future damages exceeding $100,000.

Wrongful Death: Ind. Code Section 34-23-1-1 governs wrongful death claims with specific damage provisions.

Venue: County where claim arose or where defendant resides. Ind. Code Section 34-18-6-1.