DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF LOUISIANA

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

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 request for review with the Louisiana Division of Administration, Office of Risk Management, to initiate the Medical Review Panel process as required by the Louisiana Medical Malpractice Act.

I. LOUISIANA-SPECIFIC LEGAL FRAMEWORK

A. Louisiana Medical Malpractice Act Overview

Louisiana has a comprehensive statutory scheme governing medical malpractice claims under the Louisiana Medical Malpractice Act (LMMA), La. R.S. 40:1231.1 et seq. This Act applies to claims against "qualified" healthcare providers who have enrolled in the Patient's Compensation Fund.

Qualified Healthcare Providers: A healthcare provider is "qualified" under the Act if they have:
1. Enrolled with the Patient's Compensation Fund;
2. Paid the required surcharges;
3. Maintained approved malpractice insurance.

Effect of Qualification: Qualified providers are entitled to:
- Total damage cap protection ($500,000 plus future medical);
- Mandatory Medical Review Panel process;
- Patient's Compensation Fund coverage for awards exceeding $100,000.

B. Statute of Limitations and Repose

La. R.S. 9:5628 establishes specific time limitations:

Statute of Limitations: An action for medical malpractice must be brought within one (1) year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect.

Statute of Repose: No action may be brought more than three (3) years from the date of the alleged act, omission, or neglect, regardless of when the injury was discovered. This is an absolute bar.

Discovery Rule: The prescriptive period does not begin until the plaintiff discovers or should have discovered the act, omission, or neglect. Campo v. Correa, 828 So.2d 502 (La. 2002).

Contra Non Valentem Doctrine: Louisiana courts apply the contra non valentem doctrine to suspend prescription when:
1. Some legal cause prevented the courts from taking cognizance of the claim;
2. Some condition coupled with the contract or connected with the proceedings prevented the plaintiff from suing;
3. The defendant did something to prevent the plaintiff from availing himself of his cause of action;
4. The cause of action was neither known nor reasonably knowable by the plaintiff.

Minors: The one-year prescriptive period does not run during minority. However, the three-year period of repose applies except in cases of fraud or concealment.

Filing with Medical Review Panel: The prescriptive period is suspended upon the filing of a complaint for review with a Medical Review Panel, and remains suspended until 90 days following notification of the panel's opinion.

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]

C. Medical Review Panel Requirement

CRITICAL REQUIREMENT: La. R.S. 40:1231.8 requires that no action against a qualified healthcare provider may be commenced in court until:
1. A complaint for review has been filed with the Division of Administration;
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 complaint with the Division of Administration;
2. A panel of three healthcare providers (same specialty) is selected by the parties and a judge;
3. Each party selects one panel member; the third is selected by the other two;
4. The parties exchange evidence and submissions;
5. The panel issues an opinion on whether the evidence supports the claim.

Panel Opinion: La. R.S. 40:1231.8(G) provides that the panel shall render an opinion on each of the following:
1. Whether the evidence supports the conclusion that the defendant failed to comply with the applicable standard of care;
2. Whether the failure (if any) was a cause-in-fact of the injury;
3. The degree, if any, to which the defendant's conduct contributed to the injury.

Admissibility: The panel opinion is admissible at trial but is not conclusive.

Timeline: The panel should render its opinion within one year, though delays are common.

We hereby notify you that we [have filed / intend to file] a complaint for review with the Louisiana Division of Administration pursuant to La. R.S. 40:1231.8.

D. Comparative Fault

Louisiana follows pure comparative fault under La. Civ. Code Art. 2323. A plaintiff's recovery is reduced by their percentage of fault, but recovery is not barred regardless of the degree of fault.

Our client bears no responsibility for the injuries sustained.

E. Damage Caps

Total Damage Cap for Qualified Providers: La. R.S. 40:1231.2(B)(1) imposes a cap on total recoverable damages against qualified healthcare providers:

$500,000 Total Cap (plus future medical care and related benefits)

Allocation:
- Individual qualified healthcare providers are liable for a maximum of $100,000 per patient;
- The Patient's Compensation Fund pays damages in excess of $100,000 up to the $500,000 cap;
- Future medical care and related benefits are paid by the Fund without limit (in addition to the cap).

Components:
- The $500,000 cap includes all damages except future medical care;
- Future medical care is paid as incurred by the Patient's Compensation Fund;
- Medical expenses incurred before judgment are included in the $500,000 cap.

Non-Qualified Providers: The damage cap does not apply to providers who are not enrolled in the Patient's Compensation Fund. Non-qualified providers face unlimited liability.

Constitutionality: The Louisiana Supreme Court has upheld the constitutionality of the damage cap. Butler v. Flint Goodrich Hospital, 607 So.2d 517 (La. 1992).

F. Standard of Care

Louisiana applies a national standard of care. Under La. R.S. 9:2794, a physician must exercise the degree of skill ordinarily employed, under similar circumstances, by the members of the profession in good standing in the same community or locality, and use reasonable care and diligence, along with best judgment, in applying that skill.

In practice, Louisiana courts have moved toward a national standard, especially for specialists. Pfiffner v. Correa, 643 So.2d 1228 (La. 1994).

G. Expert Witness Requirements

Louisiana requires expert testimony to establish the standard of care, breach, and causation in medical malpractice cases. La. R.S. 9:2794(D) provides:

1. Expert testimony is required to establish the standard of care and whether the defendant breached it;
2. The expert need not be from the same locality;
3. The expert need not be in the same specialty but must be qualified to testify.

Medical Review Panel as Expert: The Medical Review Panel opinion is admissible as expert evidence at trial.

H. Informed Consent

Louisiana recognizes claims for lack of informed consent under La. R.S. 40:1157.1. A physician must disclose:
1. The diagnosis;
2. The nature and purpose of the proposed treatment;
3. The material risks;
4. The alternatives;
5. The prognosis.

Louisiana follows a patient-centered standard (materiality standard) for informed consent. Hondroulis v. Schuhmacher, 553 So.2d 398 (La. 1988).

I. Vicarious Liability

Hospital Liability: Louisiana hospitals may be held vicariously liable for the negligence of their employees under La. Civ. Code Art. 2320 (respondeat superior). Hospitals may also be liable for independent contractor physicians under apparent agency or borrowed servant doctrines.

Corporate Negligence: Louisiana recognizes hospital corporate negligence for negligent credentialing, supervision, and failure to maintain adequate facilities. Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La. 1985).

J. Res Ipsa Loquitur

Louisiana recognizes res ipsa loquitur in medical malpractice cases, applying it as a rule of circumstantial evidence. The doctrine applies when:
1. The injury is of a kind that does not ordinarily occur without negligence;
2. The defendant had exclusive control of the instrumentality;
3. The plaintiff did not contribute to the injury.

Linnear v. CenterPoint Energy Entex/Reliant Energy, 966 So.2d 36 (La. 2007).

K. Loss of Chance Doctrine

Louisiana recognizes the loss of chance doctrine in medical malpractice cases. Under Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La. 1986), a plaintiff may recover for the loss of a chance of survival or better outcome, even if the pre-treatment chances were less than 50%. The damages are calculated based on the percentage of chance lost.

L. Government Immunity

Claims against state hospitals are generally subject to the Louisiana Medical Malpractice Act if the hospital is a qualified provider.

For other government claims:
- The Louisiana Governmental Claims Act, La. R.S. 13:5101 et seq., governs tort claims against the State;
- Damages against the State are capped at $500,000 per occurrence;
- Claims must be filed with the Division of Administration.

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

Louisiana law recognizes a duty to preserve evidence. Spoliation may result in adverse presumptions 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 La. R.S. 9:2794 and Louisiana jurisprudence, the standard of care applicable to [Defendant Healthcare Provider] is that degree of skill ordinarily employed by the members of the profession in good standing in the same community or locality, under 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 cause-in-fact of [describe injuries/damages];
3. Had appropriate care been rendered, [describe what would have happened].

V. CAUSATION

A. Cause-in-Fact

But for the defendant's breach of the standard of care, our client would not have suffered the injuries described herein.

B. Legal Cause

The injuries sustained by our client were within the scope of the duty breached and were a foreseeable consequence of the defendant's negligence.

C. Loss of Chance (If Applicable)

Pursuant to Louisiana's recognition of the loss of chance doctrine in Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La. 1986), 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 (Paid by PCF if qualified):

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
• Mental anguish
• Loss of enjoyment of life
• Disfigurement
• Loss of consortium (spouse's claim)

E. Summary of Damages

Note on Damage Cap: Under La. R.S. 40:1231.2(B)(1), if the defendant is a qualified healthcare provider, total recoverable damages (excluding future medical care) are capped at $500,000. The individual provider is liable for up to $100,000, with the Patient's Compensation Fund covering excess amounts. Future medical care is paid by the Fund without limit.

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]

[For qualified providers:]

Given the statutory cap, we demand the maximum recovery available under the Louisiana Medical Malpractice Act: $500,000 plus unlimited future medical care from the Patient's Compensation Fund.

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 even while the Medical Review Panel process is pending.

VIII. MEDICAL REVIEW PANEL NOTICE

We hereby provide notice that we [have filed / intend to file] a complaint for review with the Louisiana Division of Administration pursuant to La. R.S. 40:1231.8.

The Medical Review Panel process, while mandatory for qualified providers, does not preclude direct settlement negotiations. We encourage you to engage in meaningful discussions to resolve this matter efficiently.

IX. INSURANCE AND INDEMNIFICATION

We demand disclosure of:

• Confirmation of qualified provider status under the Louisiana 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
• PCF enrollment documentation

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 demonstrated through the Medical Review Panel process and at trial if necessary.

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]
Louisiana Bar Roll No. [Number]
Attorney for [Client Name]

ENCLOSURES: [List]

cc: [Client Name]
[File]
[Division of Administration - upon filing]

LOUISIANA-SPECIFIC PRACTICE NOTES

Medical Review Panel (La. R.S. 40:1231.8): Mandatory for claims against qualified healthcare providers. Panel opinion is admissible but not conclusive.

Damage Cap: $500,000 total for qualified providers (plus unlimited future medical care from PCF). Individual provider liability capped at $100,000.

Short Prescriptive Period: One year from discovery with three-year repose - one of the shortest in the country.

Qualified Provider Status: Verify whether defendant is enrolled in the Patient's Compensation Fund, as this affects procedures and damage caps.

Prescription Suspension: Filing with Medical Review Panel suspends prescription until 90 days after panel opinion.

Loss of Chance: Louisiana recognizes loss of chance recovery per Hastings v. Baton Rouge General Hospital.

Pure Comparative Fault: Louisiana is a pure comparative fault state - recovery is reduced but not barred.

Wrongful Death: La. Civ. Code Art. 2315.1 and 2315.2 govern survival and wrongful death claims with specific beneficiaries.

Venue: Parish where defendant is domiciled or where the injury occurred. La. Code Civ. Proc. Art. 42.