DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

COMMONWEALTH OF KENTUCKY

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

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. KENTUCKY-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations and Repose

KRS Section 413.140(1)(e) establishes specific time limitations for medical malpractice claims:

Statute of Limitations: An action for medical malpractice must be brought within one (1) year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered.

Statute of Repose: KRS Section 413.140(2) provides that no action for medical malpractice may be brought more than five (5) years from the date on which the alleged act of negligence occurred. This is an absolute bar to claims.

Discovery Rule: Kentucky applies a discovery rule that tolls the statute of limitations until the plaintiff discovers or should have discovered the injury and its cause. Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709 (Ky. 2000).

Minors: For minors, the statute of limitations is tolled during minority. However, KRS Section 413.170 provides that actions must be brought within one year after the disability is removed (i.e., when the minor reaches age 18), but the five-year statute of repose generally applies.

Mental Incapacity: The statute is tolled for persons under legal disability, subject to the five-year repose period.

Foreign Object Exception: The discovery rule applies with particular force in foreign object cases, allowing the statute to run from discovery of the foreign object.

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]

IMPORTANT: Kentucky has a short one-year statute of limitations. Timely filing is critical.

B. Certificate of Merit Requirement

KRS Section 411.167 requires that any complaint filed in a medical malpractice action be accompanied by a certificate of merit:

Certificate Requirements:
1. The plaintiff's attorney must certify that an expert has reviewed the case;
2. The expert must be a healthcare provider qualified to give expert testimony;
3. The expert must have concluded that there is reasonable basis to commence the action;
4. The certificate must identify at least one act or omission that the expert believes fell below the applicable standard of care.

Expert Qualifications for Certificate:
- The expert must be licensed in the same profession as the defendant;
- The expert must have experience or expertise in the same area of practice.

Filing: The certificate must be filed with the complaint. Failure to file may result in dismissal without prejudice.

We certify that we have obtained a certificate of merit complying with KRS Section 411.167 that will accompany any complaint filed in this matter.

C. Comparative Negligence

Kentucky follows pure comparative fault under KRS Section 411.182. A plaintiff's recovery is reduced by their percentage of fault, but recovery is not barred regardless of the degree of fault. Even a plaintiff who is 99% at fault may recover 1% of their damages.

Our client bears no responsibility for the injuries sustained.

D. Damage Caps

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

Punitive Damages: KRS Section 411.184 governs punitive damages:
- Punitive damages require clear and convincing evidence of gross negligence or willful and wanton misconduct;
- There is no statutory cap on punitive damages, but they must be proportional to compensatory damages;
- The Kentucky Supreme Court has held that excessive punitive damages may violate due process.

E. Standard of Care

Kentucky applies a national standard of care for medical specialists, with consideration of available facilities and resources. A physician must exercise that degree of care and skill expected of a reasonably competent practitioner in the same class acting in the same or similar circumstances. Blair v. Eblen, 461 S.W.2d 370 (Ky. 1970).

The traditional locality rule has been largely abandoned in Kentucky for specialists.

F. Expert Witness Requirements

Kentucky requires expert testimony to establish the standard of care, breach, and causation in medical malpractice cases. KRS Section 411.167 and Kentucky Rule of Evidence 702 govern expert testimony:

1. Expert testimony is required unless the negligence is within common knowledge;
2. The expert must be qualified by knowledge, skill, experience, training, or education;
3. The expert must be licensed in the same profession as the defendant;
4. The expert must have experience in the same area of practice.

Same-Profession Requirement: The expert must be of the same profession (e.g., physician for physician defendants, nurse for nurse defendants).

G. Informed Consent

Kentucky recognizes claims for lack of informed consent. Under Holton v. Pfingst, 534 S.W.2d 786 (Ky. 1976), a physician must disclose:
1. The diagnosis;
2. The nature of the proposed treatment;
3. The risks and hazards of the treatment;
4. The alternatives and their risks;
5. The anticipated results.

Kentucky follows a patient-centered standard (materiality standard), requiring disclosure of information material to a reasonable patient's decision. Keel v. St. Elizabeth Medical Center, 842 S.W.2d 860 (Ky. 1992).

H. Vicarious Liability

Hospital Liability: Kentucky 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 theories if the hospital held out the physician as its agent and the patient relied on the hospital. Floyd v. Humana of Virginia, Inc., 787 S.W.2d 267 (Ky. Ct. App. 1989).

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

I. Res Ipsa Loquitur

Kentucky 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 was within the exclusive control of the defendant;
3. The plaintiff did not contribute to the injury.

Turner v. Big Sandy Health Care, Inc., 544 S.W.3d 645 (Ky. 2018). When res ipsa loquitur applies, it creates a permissible inference of negligence.

J. Loss of Chance Doctrine

Kentucky recognizes the loss of chance doctrine in medical malpractice cases. Under Kemper v. Gordon, 272 S.W.3d 146 (Ky. 2008), a plaintiff may recover for the loss of a chance of a better outcome, even if the defendant's negligence did not more likely than not cause the ultimate harm. Damages are proportional to the lost chance.

K. Government Immunity

Claims against state hospitals and government entities are governed by the Kentucky Board of Claims and sovereign immunity principles:

State Entities:
- Claims against the Commonwealth must be filed with the Board of Claims within one year;
- The Board has exclusive jurisdiction for claims up to $500,000;
- Claims exceeding $500,000 may be filed in Franklin Circuit Court.

Local Government:
- Local government immunity is governed by KRS Section 65.2001 et seq.;
- Governmental functions are immune; proprietary functions are not;
- Notice requirements 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

Kentucky courts recognize a duty to preserve evidence once litigation is reasonably anticipated. 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 Kentucky law, the standard of care applicable to [Defendant Healthcare Provider] is that degree of care and skill expected of a reasonably competent practitioner in the same class, 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 meets the qualifications set forth in KRS Section 411.167. [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.

C. Loss of Chance (If Applicable)

Pursuant to Kentucky's recognition of the loss of chance doctrine in Kemper v. Gordon, 272 S.W.3d 146 (Ky. 2008), 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

Kentucky imposes no caps on non-economic damages. Our client is entitled to full compensation for:

• Physical pain and suffering
• Mental anguish
• 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 gross negligence or willful and wanton misconduct, warranting punitive damages under KRS Section 411.184.

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].

Given Kentucky's short one-year statute of limitations, prompt resolution is encouraged.

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 (KRS Section 411.167)
• 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 Kentucky's certification requirements.

We urge you to give this matter serious attention and to respond promptly. Given Kentucky's one-year statute of limitations, timely engagement is essential. If we cannot resolve this matter, we are prepared to file suit in the Circuit Court of Kentucky, [County] County, and to pursue this matter through trial.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: [List]

cc: [Client Name]
[File]

KENTUCKY-SPECIFIC PRACTICE NOTES

Short Statute of Limitations: Kentucky has a one-year statute of limitations for medical malpractice - one of the shortest in the country.

Certificate of Merit (KRS Section 411.167): Must accompany complaint. Expert must be licensed in same profession.

No Damage Caps: Kentucky has no caps on economic or non-economic compensatory damages.

Pure Comparative Fault: Kentucky is a pure comparative fault state - recovery is reduced but not barred regardless of plaintiff's percentage of fault.

Loss of Chance: Kentucky recognizes loss of chance recovery per Kemper v. Gordon, 272 S.W.3d 146 (Ky. 2008).

Collateral Source Rule: Kentucky maintains the traditional collateral source rule; evidence of collateral benefits is generally inadmissible.

Wrongful Death: KRS Section 411.130 governs wrongful death claims with specific damage provisions.

Prejudgment Interest: Available in certain circumstances under KRS Section 360.040.

Venue: County where defendant resides or where cause of action arose. KRS Section 452.010.