DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF MAINE

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

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.

NOTICE PURSUANT TO 24 M.R.S. SECTION 2903: This letter also serves as the required pre-litigation notice of our intent to file a claim for professional negligence.

I. MAINE-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

24 M.R.S. Section 2902 establishes the time limitation for medical malpractice claims:

Statute of Limitations: An action for professional negligence must be brought within three (3) years from the date of the act or omission giving rise to the injury.

Discovery Rule: Maine applies a discovery rule that tolls the statute of limitations. The three-year period does not begin to run until the plaintiff discovers or reasonably should have discovered the harm. Myrick v. James, 444 A.2d 987 (Me. 1982).

Continuing Treatment Doctrine: Maine recognizes the continuing treatment doctrine, which may toll the statute during the physician-patient relationship for the same condition.

Minors: For minors, 14 M.R.S. Section 853 provides that the statute of limitations is tolled during minority (under age 18), with the action to be brought within the applicable period after reaching majority.

Mental Incapacity: The statute is tolled for persons under mental incapacity.

No Specific Statute of Repose: Unlike some states, Maine does not have a specific statute of repose for medical malpractice claims that would provide an outer limit regardless of discovery.

Based on our analysis:
- Date of negligent care: [Date]
- Date of discovery (if applicable): [Date]
- Statute of limitations expires: [Date]

B. Pre-Litigation Notice Requirement

24 M.R.S. Section 2903 requires that before filing a lawsuit for professional negligence, the claimant must:

1. Provide written notice of the claim to the healthcare provider at least 90 days before filing suit;
2. The notice must include:
   - A statement of the claim;
   - The nature of the alleged injuries;
   - The theory of liability.

Effect on Statute of Limitations: The 90-day notice period tolls the statute of limitations. If the limitations period would expire during the notice period, the claimant has at least 30 days after the notice period to file suit.

This letter serves as the required pre-litigation notice pursuant to 24 M.R.S. Section 2903.

C. Pre-Litigation Screening Panel

24 M.R.S. Section 2851 et seq. establishes a mandatory pre-litigation screening panel process:

Panel Composition:
1. One attorney (selected from a panel approved by the court);
2. One healthcare provider in the same specialty as the defendant;
3. One public member.

Panel Process:
1. Either party may request a screening panel hearing;
2. The request must be filed with the Superior Court;
3. The panel reviews evidence and hears from both sides;
4. The panel issues a finding on whether the defendant was negligent and whether such negligence caused injury.

Panel Findings: Under 24 M.R.S. Section 2857:
- The panel's findings are admissible at trial;
- A unanimous finding is admissible as evidence;
- A non-unanimous finding is not admissible;
- The panel's findings are not binding on the parties.

Bypass Option: The parties may agree to waive the screening panel process.

We hereby notify you that we [intend to request / have requested] a pre-litigation screening panel pursuant to 24 M.R.S. Section 2851.

D. Comparative Negligence

Maine follows modified comparative fault under 14 M.R.S. Section 156. 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.

E. Damage Caps

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

Punitive Damages: Maine does not generally allow punitive damages except in specific statutory circumstances (not typically applicable to medical malpractice).

F. Standard of Care

Maine applies a national standard of care for medical specialists. A healthcare provider must exercise that degree of skill, care, and treatment that, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably competent medical practitioners. Campbell v. Pitt, 302 A.2d 620 (Me. 1973).

The locality rule has been largely abandoned in Maine in favor of a national standard, particularly for specialists.

G. Expert Witness Requirements

Maine requires expert testimony to establish the standard of care, breach, and causation in medical malpractice cases. Maine Rule of Evidence 702 governs expert testimony:

1. Expert testimony is required in medical malpractice cases unless the matter is within common knowledge;
2. The expert must be qualified by knowledge, skill, experience, training, or education;
3. The expert need not practice in Maine but must be familiar with the applicable standard of care.

Screening Panel Expert: The healthcare provider member of the screening panel provides expert input during the pre-litigation process.

H. Informed Consent

Maine recognizes claims for lack of informed consent. Under Maine common law, a physician must disclose:
1. The diagnosis;
2. The nature of the proposed treatment;
3. The risks and benefits of the proposed treatment;
4. Alternative treatments;
5. The consequences of no treatment.

Maine follows a patient-centered standard (materiality standard), requiring disclosure of information that a reasonable patient would want to know in making the decision. Woolley v. Henderson, 418 A.2d 1123 (Me. 1980).

I. Vicarious Liability

Hospital Liability: Maine 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 theories if the hospital held out the physician as its agent and the patient relied on the hospital.

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

J. Res Ipsa Loquitur

Maine recognizes res ipsa loquitur in medical malpractice cases in appropriate circumstances. The doctrine applies when:
1. The injury is of a kind that does not ordinarily occur without negligence;
2. The instrumentality causing the injury was under the exclusive control of the defendant;
3. The plaintiff did not contribute to the injury.

Poulin v. Colby College, 402 A.2d 846 (Me. 1979). The doctrine creates a permissible inference of negligence.

K. Loss of Chance Doctrine

Maine recognizes the loss of chance doctrine in medical malpractice cases. Under Merriman v. Wichman, 2012 ME 61, a plaintiff may recover for the loss of a chance of survival or better outcome when a defendant's negligence reduces the plaintiff's chance. Damages are calculated proportionally based on the percentage of lost chance.

L. Government Immunity

Claims against government hospitals and providers are governed by the Maine Tort Claims Act, 14 M.R.S. Section 8101 et seq.

Key Provisions:
- Notice of claim must be filed within 365 days of the occurrence;
- Damages against government entities are capped at $400,000 per occurrence;
- Certain immunities apply to discretionary functions;
- The screening panel process still applies to government healthcare providers.

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

Maine 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 Maine law, the standard of care applicable to [Defendant Healthcare Provider] is that degree of skill, care, and treatment that is recognized as acceptable and appropriate by reasonably competent medical practitioners under 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. [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 Maine's recognition of the loss of chance doctrine in Merriman v. Wichman, 2012 ME 61, 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

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

• Physical pain and suffering
• Emotional distress
• Loss of enjoyment of life
• Disfigurement/Physical impairment
• Loss of consortium (spouse's claim)

E. 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].

Please note that the 90-day pre-litigation notice period under 24 M.R.S. Section 2903 will begin running from the date of this letter.

VIII. PRE-LITIGATION PROCESS NOTICE

A. 90-Day Notice

This letter constitutes the required pre-litigation notice pursuant to 24 M.R.S. Section 2903. The 90-day notice period begins upon your receipt of this letter. We reserve the right to file a lawsuit at the conclusion of the notice period.

B. Screening Panel

We [intend to request / have requested] a pre-litigation screening panel pursuant to 24 M.R.S. Section 2851. We are prepared to participate in the screening panel process in good faith while also pursuing settlement negotiations.

The parties may agree to waive the screening panel process if settlement discussions progress favorably.

IX. 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

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 is supported by expert opinion.

We urge you to give this matter serious attention and to respond promptly. Early resolution will benefit all parties by potentially avoiding the screening panel process and litigation.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: [List]

cc: [Client Name]
[File]

MAINE-SPECIFIC PRACTICE NOTES

90-Day Pre-Litigation Notice (24 M.R.S. Section 2903): Required before filing suit. Notice tolls the statute of limitations.

Pre-Litigation Screening Panel (24 M.R.S. Section 2851): Mandatory unless waived by both parties. Panel findings (if unanimous) are admissible at trial.

No Damage Caps: Maine has no caps on economic or non-economic damages in medical malpractice cases.

Loss of Chance: Maine recognizes loss of chance recovery per Merriman v. Wichman, 2012 ME 61.

Three-Year Statute of Limitations: Longer than many states; runs from act or discovery.

Notice for Government Claims: 365 days under the Maine Tort Claims Act; damages capped at $400,000.

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

Wrongful Death: 18-A M.R.S. Section 2-804 governs wrongful death claims with specific damage provisions.

Prejudgment Interest: Available from date of service of complaint or from 6 months after filing, whichever is earlier. 14 M.R.S. Section 1602-B.

Venue: County where defendant resides or where cause of action arose. 14 M.R.S. Section 501.