DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

COMMONWEALTH OF MASSACHUSETTS

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

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Risk Management / Claims Administrator]
[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. MASSACHUSETTS-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations and Repose

Under Massachusetts General Laws Chapter 260, Section 4, the statute of limitations for medical malpractice claims is:

General Rule: Three (3) years from the date the plaintiff discovers, or reasonably should have discovered, the injury and its causal connection to the medical treatment.

Statute of Repose: Seven (7) years from the date of the alleged act or omission, regardless of when the injury is discovered. M.G.L. c. 260, Section 4.

Exceptions to Statute of Repose:
- Foreign object cases: The statute of repose does not apply when a foreign object has been left in the patient's body
- Fraudulent concealment: Tolling applies when the defendant fraudulently conceals the existence of a cause of action

Minor Tolling: For minors under age 6, the statute does not begin to run until the child reaches age 6. The statute then runs for 3 years or until age 9, whichever is later. M.G.L. c. 260, Section 4.

Discovery Rule: The discovery rule applies in Massachusetts. The limitations period begins when the plaintiff knows, or reasonably should have known, that the defendant's conduct caused the injury. Franklin v. Albert, 381 Mass. 611 (1980).

B. Modified Comparative Negligence

Massachusetts follows a modified comparative negligence standard under M.G.L. c. 231, Section 85. A plaintiff may recover damages reduced by their percentage of fault, provided their fault does not exceed 50%. If the plaintiff is 51% or more at fault, recovery is completely barred.

Our client exercised all reasonable care in connection with [his/her] medical treatment and bears no responsibility for the injuries sustained.

C. Mandatory Tribunal Review - CRITICAL

CRITICAL MASSACHUSETTS REQUIREMENT: Under M.G.L. c. 231, Section 60B, every medical malpractice claim must be presented to a Medical Malpractice Tribunal before proceeding to trial.

The Tribunal consists of:
1. A Superior Court Justice
2. A physician licensed in Massachusetts
3. An attorney licensed in Massachusetts

Tribunal Standard: The tribunal determines whether the evidence is sufficient to raise a legitimate question of liability appropriate for judicial inquiry. This is not a determination on the merits.

Consequences of Adverse Finding:
- If the tribunal finds the evidence insufficient, the case may proceed only upon the plaintiff posting a $6,000 bond for costs
- The bond requirement can be waived upon showing of indigency

We are prepared to proceed through the mandatory tribunal process and are confident the evidence will demonstrate a legitimate question of liability.

D. Offer of Proof Requirement

Under M.G.L. c. 231, Section 60B, the plaintiff must file an offer of proof with the tribunal consisting of:
- The medical records
- An expert opinion supporting the claim
- Any other evidence upon which the claim is based

E. Damage Caps

Massachusetts imposes a cap on non-economic damages under M.G.L. c. 231, Section 60H:

Cap: $500,000 for non-economic damages

Exception - Cap Does Not Apply When:
- There is a substantial or permanent loss or impairment of a bodily function
- There is substantial disfigurement
- Other special circumstances warrant higher damages

See English v. New England Medical Center, 405 Mass. 423 (1989).

Economic damages are not capped.

F. Periodic Payment of Damages

Under M.G.L. c. 231, Section 60F, for judgments exceeding $250,000, the court may order periodic payments of future damages upon motion by any party.

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
• Informed consent documents
• Patient correspondence and communications
• Incident/occurrence reports
• Policies, procedures, and protocols in effect at the time of treatment
• Credentialing files for involved healthcare providers
• Staffing records and schedules
• Equipment maintenance records
• Risk management files

Massachusetts recognizes the tort of spoliation of evidence. Fletcher v. Dorchester Mutual Insurance Co., 437 Mass. 544 (2002). Destruction or alteration of evidence may result in adverse inference instructions and independent tort liability.

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]
- [Current medications]
- [Allergies]

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]

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. Massachusetts Standard of Care

Under Massachusetts law, a healthcare provider must exercise "the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession." Brune v. Belinkoff, 354 Mass. 102 (1968).

National Standard: Massachusetts has rejected the locality rule in favor of a national standard of care. The standard is not limited to the local community but encompasses the standards of the medical profession generally. Brune v. Belinkoff, 354 Mass. 102 (1968).

B. Breaches of the Standard of Care

[Defendant Healthcare Provider] breached the applicable standard of care in the following ways:

Breach 1: [Detailed description]
- What the standard required: [Describe]
- What the provider did or failed to do: [Describe]

Breach 2: [Detailed description]

C. Expert Opinion

We have retained a board-certified [Specialty] physician who has reviewed the relevant medical records and concluded, to a reasonable degree of medical certainty, that:

1. The defendant(s) failed to meet the applicable standard of care;
2. Such failure was a proximate cause of [Client Name]'s injuries; and
3. The injuries described herein resulted from the negligent care.

This expert will provide testimony at the mandatory tribunal hearing and at trial.

V. CAUSATION

A. Causation Standard in Massachusetts

Massachusetts requires proof of causation by a preponderance of the evidence. The plaintiff must demonstrate that the defendant's negligence was a "but for" cause of the injury and that the injury was a foreseeable consequence of the negligent act. Matsuyama v. Birnbaum, 452 Mass. 1 (2008).

But for the defendant's negligence, our client would not have suffered the injuries described herein.

B. Loss of Chance Doctrine

Massachusetts recognizes the loss of chance doctrine in medical malpractice cases. In Matsuyama v. Birnbaum, 452 Mass. 1 (2008), the Supreme Judicial Court held that a patient may recover for the loss of chance of a better outcome, even if the patient could not prove that it was more likely than not that proper treatment would have prevented the harm.

Proportional Damages: Damages are calculated proportionally based on the degree to which the chance of a better outcome was reduced. Id.

[If applicable:] The defendant's negligence reduced our client's chance of [survival / recovery / better outcome] from [percentage]% to [percentage]%, representing a loss of [percentage]% chance.

C. Res Ipsa Loquitur

[If applicable:] The doctrine of res ipsa loquitur applies to this case. Under Massachusetts law, res ipsa loquitur allows an inference of negligence when: (1) the injury is of a kind that ordinarily does not occur in the absence of negligence; (2) the the instrumentality causing the injury was within the exclusive control of the defendant; and (3) the plaintiff did not contribute to the injury. Evangelio v. Metropolitan Bottling Co., 339 Mass. 177 (1959).

VI. VICARIOUS LIABILITY AND HOSPITAL LIABILITY

A. Respondeat Superior

Under Massachusetts law, a hospital may be held vicariously liable for the negligence of its employees under the doctrine of respondeat superior. Kelley v. Rossi, 395 Mass. 659 (1985).

B. Apparent Agency / Ostensible Agency

Massachusetts recognizes the doctrine of apparent agency for hospital liability. A hospital may be held liable for the negligence of independent contractor physicians if the patient reasonably believed the physician was an employee or agent of the hospital. Kelley v. Rossi, 395 Mass. 659 (1985).

Factors considered include:
- Whether the hospital held out the physician as its employee
- Whether the patient looked to the hospital for care
- Whether the patient had a prior relationship with the physician

C. Corporate Negligence

Massachusetts recognizes claims for direct hospital negligence based on:
- Negligent selection, supervision, or retention of medical staff
- Failure to formulate, adopt, and enforce adequate rules for patient care
- Failure to maintain safe facilities and equipment

Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326 (1965) (recognized in Massachusetts).

D. Government Immunity

Massachusetts Tort Claims Act: Claims against public hospitals and government healthcare facilities are governed by M.G.L. c. 258, which provides a limited waiver of sovereign immunity.

Notice Requirement: Written notice of the claim must be presented to the executive officer of the governmental entity within two (2) years of the date of the occurrence. M.G.L. c. 258, Section 4.

Damage Cap for Government Entities: $100,000 per claim, unless there is insurance coverage. M.G.L. c. 258, Section 2.

VII. INFORMED CONSENT

A. Massachusetts Informed Consent Standard

Massachusetts follows the physician-based standard (professional standard) for informed consent. Under this standard, a physician must disclose information that a reasonable physician in the same specialty would disclose under similar circumstances. Harnish v. Children's Hospital Medical Center, 387 Mass. 152 (1982).

Exception - Full Disclosure Required For:
- Battery claims (no consent at all)
- Treatment outside the scope of consent

B. Required Disclosures

Under Harnish, required disclosures include:
1. The nature of the procedure
2. The risks and consequences of the procedure
3. Alternative treatments available
4. The benefits of the proposed treatment
5. The probability of success

C. Informed Consent Breach

[If applicable:] The defendant failed to obtain proper informed consent by failing to disclose [describe undisclosed material information]. Had our client been informed of [the specific risk / alternative treatment], [he/she] would not have consented to the procedure.

VIII. WRONGFUL DEATH (If Applicable)

[If this is a wrongful death case:]

This claim includes a wrongful death action under M.G.L. c. 229, Section 2. The beneficiaries include:

• [Spouse Name]
• [Child Name(s)]
• [Parent Name(s)]

Damages in Wrongful Death: Massachusetts allows recovery for:
- Loss of consortium
- Conscious pain and suffering of the decedent before death
- Funeral and burial expenses
- Punitive damages where the death was caused by malicious, willful, wanton, or reckless conduct

The wrongful death statute of limitations is three (3) years from the date of death. M.G.L. c. 260, Section 4.

IX. DAMAGES

A. Medical Expenses

Past Medical Expenses:

Future Medical Expenses: $[Amount]

B. Lost Earnings

C. Non-Economic Damages

Note: Subject to $500,000 cap unless exception applies (substantial/permanent impairment, disfigurement, or special circumstances)

• Physical pain and suffering
• Emotional distress
• Loss of enjoyment of life
• Disfigurement and disability
• Loss of consortium

[If applicable:] The $500,000 cap does not apply in this case because [describe substantial permanent impairment / disfigurement / special circumstances].

D. Summary of Damages

X. SETTLEMENT DEMAND

Based upon the clear breach of the standard of care, the severity of our client's injuries, and the substantial damages, we hereby demand:

$[DEMAND AMOUNT]

This demand will remain open for forty-five (45) days from the date of this letter, through and including [Expiration Date].

Pre-tribunal resolution would avoid the time and expense of the mandatory tribunal process for all parties. However, we are fully prepared to proceed through the tribunal and to trial if necessary.

XI. DOCUMENTATION ENCLOSED

• Complete medical records from all relevant providers
• Medical expense itemization and bills
• Employment and wage loss documentation
• Expert opinion letter (offer of proof materials available upon tribunal filing)
• Expert curriculum vitae
• HIPAA authorizations

XII. CONCLUSION

This case involves clear medical negligence that caused significant harm to our client. The breach of the standard of care is supported by qualified expert opinion, and the causal connection between the negligence and our client's injuries is direct.

Massachusetts' mandatory tribunal process ensures that only meritorious claims proceed to trial. We are confident this claim will satisfy the tribunal's standard, and we invite early resolution to avoid the costs of litigation for both parties.

Please respond within the time specified above.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
BBO Number: [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

MASSACHUSETTS-SPECIFIC PRACTICE NOTES

Tribunal Process: The tribunal is a significant procedural hurdle. Ensure the offer of proof is complete and includes a strong expert opinion. An adverse tribunal finding is not dispositive but requires posting a $6,000 bond.

Expert Requirements: Massachusetts does not have rigid statutory requirements for expert qualifications, but experts should have experience in the same specialty as the defendant. Letch v. Daniels, 401 Mass. 65 (1987).

Loss of Chance: The Matsuyama decision is significant. For cases where the patient's chance of survival was less than 50%, the loss of chance doctrine may provide a path to recovery. Damages are proportional to the lost chance.

Non-Economic Damage Cap: The $500,000 cap has significant exceptions. Document substantial permanent impairment or disfigurement to argue the cap should not apply.

Charitable Immunity: M.G.L. c. 231, Section 85K limits the liability of charitable organizations (including many hospitals) to $100,000 for tort claims, unless the charity has liability insurance for higher amounts.

Periodic Payments: Be aware that the defendant may seek periodic payments for future damages exceeding $250,000.

Government Entity Claims: Remember the two-year presentment requirement for claims against public hospitals under M.G.L. c. 258.

This template must be customized for the specific facts of your case. Massachusetts medical malpractice law has unique procedural requirements. Consult with experienced Massachusetts medical malpractice counsel.