DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF KANSAS

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

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. KANSAS-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations and Repose

K.S.A. Section 60-513(c) establishes specific time limitations for medical malpractice claims:

Statute of Limitations: An action for medical malpractice must be brought within two (2) years from the date the plaintiff's cause of action accrues.

Statute of Repose: K.S.A. Section 60-513(c) provides that no medical malpractice action may be commenced more than four (4) years from the date of the act giving rise to the claim, regardless of when the injury was discovered.

Discovery Rule: The cause of action accrues when the plaintiff reasonably could have first discovered the injury and its cause. Hernandez v. Russi, 946 P.2d 1372 (Kan. 1997).

Substantial Factor Test: The limitations period begins when facts exist that would have alerted a reasonable person of the need to investigate the condition further. The plaintiff need not know the full extent of injuries.

Minors: For minors, the statute of limitations is tolled until the minor reaches age 18. However, K.S.A. Section 60-515 provides that in no event shall an action be brought more than 8 years after the act or omission, regardless of minority.

Incapacity: The statute is tolled during periods of legal incapacity, subject to the overall repose period.

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. Pre-Suit Screening Panel

K.S.A. Section 65-4901 et seq. establishes a voluntary medical malpractice screening panel system:

Key Features:
1. The screening panel process is optional, not mandatory;
2. Either party may request submission to a screening panel;
3. The panel consists of three healthcare providers and one attorney;
4. The panel issues an advisory opinion on the standard of care and causation;
5. The panel's findings are admissible at trial.

Effect on Statute of Limitations: If a claim is submitted to a screening panel, the statute of limitations is tolled during the pendency of the panel proceedings. K.S.A. Section 65-4904.

No Expert Affidavit Required: Unlike some states, Kansas does not require a certificate of merit or expert affidavit to be filed with the complaint.

C. Comparative Negligence

Kansas follows modified comparative fault under K.S.A. Section 60-258a. A plaintiff is barred from recovery if the plaintiff's fault is equal to or greater than the combined fault of all defendants (50% or more). If the plaintiff's fault is less than 50%, recovery is reduced proportionally.

Our client bears no responsibility for the injuries sustained.

D. Damage Caps

Non-Economic Damage Cap: K.S.A. Section 60-19a02 imposes a cap on non-economic damages in personal injury actions, including medical malpractice:

• $325,000 cap on non-economic damages (as of 2022, subject to periodic adjustment)
• The cap applies regardless of the number of defendants

Exception for Death or Permanent Impairment: The cap does not apply to wrongful death claims or claims involving permanent impairment of a bodily function.

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

Punitive Damages: K.S.A. Section 60-3702 caps punitive damages at the lesser of:
- The annual gross income of the defendant; or
- $5,000,000

Punitive damages require clear and convincing evidence of willful conduct, wanton conduct, fraud, or malice.

E. Standard of Care

Kansas applies a national standard of care for medical specialists, moving away from the strict locality rule. A physician must exercise that degree of learning, skill, and care which is ordinarily possessed and exercised by members of the profession in good standing. Natanson v. Kline, 350 P.2d 1093 (Kan. 1960).

For specialists, the standard is measured against physicians in the same specialty regardless of geographic location.

F. Expert Witness Requirements

Kansas requires expert testimony to establish the standard of care, breach, and causation in medical malpractice cases. K.S.A. Section 60-3412 provides:

1. Expert testimony is generally required in professional negligence cases;
2. The expert must be qualified by knowledge, skill, experience, training, or education;
3. The exception is where the negligence is so obvious that it is within the comprehension of lay jurors (res ipsa loquitur situations).

No Locality Requirement: Kansas does not require the expert to be from the same locality as the defendant.

G. Informed Consent

Kansas recognizes claims for lack of informed consent under the landmark case Natanson v. Kline, 350 P.2d 1093 (Kan. 1960). A physician must disclose:
1. The nature of the patient's condition;
2. The nature of the proposed treatment;
3. The probability of success;
4. The risks of the treatment;
5. Available alternatives.

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

H. Vicarious Liability

Hospital Liability: Kansas 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 if the hospital held out the physician as its agent. Phelps v. Physicians Insurance Co., 698 P.2d 1267 (Kan. 1985).

Corporate Negligence: Kansas recognizes hospital corporate negligence for failures in credentialing, supervision, and maintenance of adequate facilities.

I. Res Ipsa Loquitur

Kansas 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 injury was caused by an agency or instrumentality within the exclusive control of the defendant;
3. The plaintiff did not contribute to the injury.

Williams v. Burroughs, 564 P.2d 133 (Kan. 1977). When res ipsa loquitur applies, expert testimony may not be required.

J. Loss of Chance Doctrine

Kansas does not recognize the loss of chance doctrine as a separate theory of recovery. Traditional causation principles requiring proof that the defendant's negligence more likely than not caused the injury apply. Pipe v. Hamilton, 56 P.3d 823 (Kan. 2002).

K. Government Immunity

Claims against state hospitals and government entities are governed by the Kansas Tort Claims Act, K.S.A. Section 75-6101 et seq.

• Written notice must be filed with the Attorney General within 120 days (for state claims) or with the governing body within 120 days (for local claims);
• Maximum liability is $500,000 per occurrence;
• Punitive damages are not recoverable against the State;
• Discretionary function immunity may apply to certain acts.

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

Kansas 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 Kansas law, the standard of care applicable to [Defendant Healthcare Provider] is that degree of learning, skill, and care ordinarily possessed and exercised by members of the profession in good standing.

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 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 K.S.A. Section 60-19a02, non-economic damages are capped at $325,000 in medical malpractice cases (except for wrongful death or permanent impairment of bodily function). 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: [If applicable:] This case involves [permanent impairment of bodily function / wrongful death], and therefore the non-economic damage cap does not apply.

E. Punitive Damages (If Applicable)

[If conduct warrants:]

The conduct of [Defendant] rises to the level of willful conduct, wanton conduct, fraud, or malice, warranting punitive damages under K.S.A. Section 60-3702.

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
• 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.

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 District Court of Kansas, [County] County, and to pursue this matter through trial.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: [List]

cc: [Client Name]
[File]

KANSAS-SPECIFIC PRACTICE NOTES

Voluntary Screening Panel (K.S.A. Section 65-4901): Available but not mandatory. Panel findings are admissible at trial.

Non-Economic Damage Cap (K.S.A. Section 60-19a02): $325,000 cap, but does not apply to wrongful death or permanent impairment of bodily function.

No Certificate of Merit Required: Kansas does not require a pre-suit expert affidavit.

Natanson Doctrine: Kansas is a pioneer in informed consent law. Natanson v. Kline, 350 P.2d 1093 (Kan. 1960).

Notice for Government Claims: 120 days for state and local government claims under the Kansas Tort Claims Act.

Collateral Source Rule: K.S.A. Section 60-3801 et seq. modified the collateral source rule; evidence of collateral source payments is admissible.

Wrongful Death: K.S.A. Section 60-1901 et seq. governs wrongful death claims with specific damage provisions.

Prejudgment Interest: Available from the date of filing in certain circumstances. K.S.A. Section 16-201.

Venue: County where defendant resides, where cause of action arose, or where plaintiff resides if defendant is a nonresident. K.S.A. Section 60-602.