DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF MARYLAND

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

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. MARYLAND-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations and Repose

Under Maryland Courts and Judicial Proceedings Article Section 5-109, the statute of limitations for medical malpractice claims is the earlier of:

1. Five (5) years from the date the injury was committed; OR
2. Three (3) years from the date the injury was discovered.

Md. Code, Cts. & Jud. Proc. Section 5-109(a).

Statute of Repose: Maryland imposes an absolute five (5) year statute of repose from the date of the negligent act, regardless of when the injury is discovered. Edmonds v. Cytology Services of Maryland, Inc., 111 Md. App. 233 (1996).

Discovery Rule: The discovery rule applies when the injury or its cause was inherently unknowable. The limitations period begins when the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, the injury and its probable cause. Pennwalt Corp. v. Nasios, 314 Md. 433 (1988).

Minor Tolling: For claims involving minors under 11 years of age, the statute of limitations is tolled until the minor reaches age 11, at which point the minor has until age 16 to file suit. Md. Code, Cts. & Jud. Proc. Section 5-109(b).

B. Contributory Negligence - CRITICAL

Maryland is one of only four jurisdictions that retains the doctrine of pure contributory negligence. Under this doctrine, any negligence on the part of the plaintiff that contributes to the injury, no matter how slight, completely bars recovery. Harrison v. Montgomery Cty. Bd. of Educ., 295 Md. 442 (1983).

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

C. Certificate of Qualified Expert Requirement

CRITICAL MARYLAND REQUIREMENT: Pursuant to Maryland Courts and Judicial Proceedings Article Section 3-2A-04, a certificate of a qualified expert must be filed within 90 days of filing a medical malpractice claim.

The certificate must:
1. Certify that the expert has reviewed the available medical records;
2. Certify that the expert is qualified to render an opinion on the standard of care;
3. Set forth the expert's opinion that the defendant departed from the applicable standard of care; and
4. Describe the basis for that opinion.

Failure to file a proper certificate within the statutory period, including any extensions, results in mandatory dismissal of the claim. Md. Code, Cts. & Jud. Proc. Section 3-2A-04(b)(3).

We hereby certify that a qualified expert has reviewed this matter and supports the claims set forth herein.

D. Health Care Alternative Dispute Resolution Office (HCADRO)

Maryland previously required mandatory arbitration through the Health Claims Arbitration Office. Effective October 1, 2004, this requirement was eliminated, and medical malpractice claims may now be filed directly in Circuit Court. See Md. Code, Cts. & Jud. Proc. Section 3-2A-01 et seq.

E. Damage Caps

Maryland imposes caps on non-economic damages in medical malpractice cases under Md. Code, Cts. & Jud. Proc. Section 3-2A-09:

Current Cap (2024): $890,000 for claims arising on or after January 1, 2024

The cap increases by $15,000 annually. For wrongful death cases with two or more claimants, the cap is 125% of the standard cap.

Note: Economic damages (medical expenses, lost wages, etc.) are not capped.

Punitive Damages: Punitive damages in Maryland are generally not subject to the medical malpractice cap but are limited by common law standards requiring actual malice. Owens-Illinois, Inc. v. Zenobia, 325 Md. 420 (1992).

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

Maryland courts recognize claims for spoliation of evidence. Miller v. Montgomery County, 64 Md. App. 202 (1985). Destruction or alteration of evidence may result in adverse inference instructions, sanctions, 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. Maryland Standard of Care

Under Maryland law, a healthcare provider must "use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances." Shilkret v. Annapolis Emergency Hospital Ass'n, 276 Md. 187 (1975).

National Standard: Maryland applies a national standard of care rather than a locality rule. Id. The standard is not limited to the geographic area where the defendant practices but encompasses the general standards of the medical profession nationwide.

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 Certification

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

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

This expert is qualified under Md. Code, Cts. & Jud. Proc. Section 3-2A-02(c) to render opinions in this matter.

V. CAUSATION

A. Factual and Proximate Causation

Under Maryland law, a plaintiff must establish that the defendant's breach of the standard of care was both the "but for" cause and a proximate cause of the injury. Peterson v. Underwood, 258 Md. 9 (1970).

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

B. Loss of Chance Doctrine

Maryland recognizes the loss of chance doctrine in medical malpractice cases. A plaintiff may recover when a healthcare provider's negligence reduces the patient's chance of a better outcome. Fennell v. Southern Maryland Hospital Center, Inc., 320 Md. 776 (1990).

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

C. Res Ipsa Loquitur

[If applicable:] The doctrine of res ipsa loquitur applies to this case. Under Maryland law, res ipsa loquitur is available in medical malpractice cases when: (1) the injury is of a kind that does not ordinarily occur absent negligence; (2) the injury was caused by an instrumentality within the exclusive control of the defendant; and (3) the injury was not caused by any act of the plaintiff. James v. Hutton, 273 Md. 164 (1974).

VI. VICARIOUS LIABILITY AND HOSPITAL LIABILITY

A. Respondeat Superior

Under Maryland law, a hospital may be held vicariously liable for the negligence of its employees under respondeat superior. Adams v. Benson, 208 Md. 261 (1955).

B. Apparent Agency / Ostensible Agency

Maryland 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. Mehlman v. Powell, 281 Md. 269 (1977).

C. Corporate Negligence

Maryland recognizes claims for direct hospital negligence based on:
- Negligent credentialing or privileging of physicians
- Negligent supervision of medical staff
- Failure to maintain adequate staffing
- Failure to maintain safe facilities and equipment

Thomas v. Corso, 265 Md. 84 (1972).

D. Government Immunity

Maryland Tort Claims Act: Claims against state agencies and employees are governed by the Maryland Tort Claims Act, Md. Code, State Gov't Section 12-101 et seq., which provides limited waiver of sovereign immunity.

Local Government Tort Claims Act: Claims against local governments are governed by Md. Code, Cts. & Jud. Proc. Section 5-301 et seq.

Notice requirements and damage caps apply to government entity claims.

VII. INFORMED CONSENT

A. Maryland Informed Consent Standard

Maryland follows the patient-oriented standard (also known as the "reasonable patient" or "materiality" standard) for informed consent. Under this standard, a physician must disclose information that a reasonable patient would find material to the decision whether to undergo treatment. Sard v. Hardy, 281 Md. 432 (1977).

Required disclosures include:
1. The nature of the procedure or treatment;
2. The risks and benefits of the proposed treatment;
3. Alternative treatments and their risks and benefits; and
4. The risks of refusing treatment.

B. 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 Md. Code, Cts. & Jud. Proc. Section 3-904. The beneficiaries include:

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

The wrongful death statute of limitations is three (3) years from the date of death. Md. Code, Cts. & Jud. Proc. Section 3-904(g).

Survival Action: A survival action for the decedent's pain and suffering prior to death is also asserted. Md. Code, Est. & Trusts Section 7-401.

IX. DAMAGES

A. Medical Expenses

Past Medical Expenses:

Future Medical Expenses: $[Amount]

B. Lost Earnings

C. Non-Economic Damages

Subject to Maryland's statutory cap of $890,000 (2024)

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

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].

Given Maryland's contributory negligence rule, early resolution is particularly advantageous for both parties. We are confident that liability is clear and that our client bears no contributory fault whatsoever.

XI. DOCUMENTATION ENCLOSED

• Complete medical records from all relevant providers
• Medical expense itemization and bills
• Employment and wage loss documentation
• Certificate of qualified expert (to be filed with complaint)
• 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.

Given Maryland's contributory negligence doctrine and the clear liability in this case, we believe early resolution serves both parties' interests. However, we are fully prepared to file suit and litigate this matter through trial if necessary.

Please respond within the time specified above.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
Maryland Bar Number: [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

MARYLAND-SPECIFIC PRACTICE NOTES

Contributory Negligence: Maryland remains one of only four U.S. jurisdictions (with Alabama, North Carolina, and Virginia, plus D.C.) that follows pure contributory negligence. Any fault on the plaintiff's part bars recovery entirely. This doctrine creates significant risk but also significant leverage if liability is clear.

Last Clear Chance: The doctrine of last clear chance may allow recovery even if the plaintiff was contributorily negligent, if the defendant had the last clear opportunity to avoid the injury. Menish v. Polinger, 277 Md. 553 (1976).

Certificate Requirement: The 90-day deadline for filing the certificate of qualified expert is strictly enforced. Extensions may be granted for good cause, but courts have dismissed cases for non-compliance. Ensure the certificate meets all statutory requirements.

Expert Qualifications: Under Md. Code, Cts. & Jud. Proc. Section 3-2A-02(c), experts must:
- Be licensed to practice medicine
- Have clinical experience in the defendant's specialty or a related field
- Devote at least 80% of professional time to clinical practice or teaching

Caps: Remember that the non-economic damage cap increases by $15,000 annually. Verify the current cap for the year the claim arose.

Circuit Court Filing: Medical malpractice cases are filed in Circuit Court. No mandatory arbitration is required.

Peer Review Privilege: Maryland has strong peer review protections. Md. Code, Health-Gen. Section 1-401. However, incident reports created in the ordinary course of business may be discoverable.

This template must be customized for the specific facts of your case. Maryland medical malpractice law is complex, and the contributory negligence doctrine creates unique risks and opportunities. Consult with experienced Maryland medical malpractice counsel.