DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF MISSOURI

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

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. MISSOURI-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

Under Missouri Revised Statutes Section 516.105, the statute of limitations for medical malpractice claims is:

Two (2) years from the date of the act of neglect complained of, OR from the date when the patient discovered, or through the use of ordinary diligence should have discovered, the injury.

Statute of Repose: In no event may an action be commenced more than ten (10) years from the date of the act of neglect, except:
- For actions based on leaving a foreign object in the body; or
- For actions on behalf of a minor under 10 years of age (must file by minor's 12th birthday).

Mo. Rev. Stat. Section 516.105.

Discovery Rule: Missouri applies the discovery rule. The limitations period begins when the plaintiff discovers or reasonably should have discovered the injury and its potential connection to medical negligence. Powel v. Chaminade College Preparatory, 197 S.W.3d 576 (Mo. 2006).

Minor Tolling: For minors under 18, the statute of limitations is tolled until the minor reaches age 18. Mo. Rev. Stat. Section 516.170. However, for minors under 10 at the time of the malpractice, the 10-year statute of repose is tolled until the child's 12th birthday. Mo. Rev. Stat. Section 516.105.

B. Pure Comparative Fault

Missouri follows a pure comparative fault standard under Mo. Rev. Stat. Section 537.765. A plaintiff may recover damages reduced by their percentage of fault, regardless of the degree of fault. Even if the plaintiff is more than 50% at fault, they may still recover a proportionate share of damages.

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

C. Affidavit of Qualified Health Care Provider Requirement

CRITICAL MISSOURI REQUIREMENT: Under Mo. Rev. Stat. Section 538.225, a medical malpractice complaint must be accompanied by an Affidavit of Qualified Health Care Provider that states:

1. The health care provider signing the affidavit is a legally qualified health care provider;
2. The affiant has reviewed the medical records and other relevant materials;
3. It is the affiant's opinion that the defendant failed to use that degree of skill and learning ordinarily used by competent health care providers; and
4. The affiant's opinion is based on the affiant's experience, education, or training.

Failure to file this affidavit may result in dismissal of the claim. Mo. Rev. Stat. Section 538.225(4).

We hereby certify that we have obtained a qualified expert opinion supporting this claim.

D. Damage Caps

Missouri imposes caps on non-economic damages under Mo. Rev. Stat. Section 538.210:

General Cap: Approximately $400,000 (adjusted for inflation from the 2005 base)

Catastrophic Injuries: Approximately $700,000 for:
- Death
- Loss or substantial impairment of a major bodily function
- Significant disfigurement

These caps apply per occurrence and are adjusted annually for inflation.

Note: The Missouri Supreme Court upheld these caps in Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Mo. 2012).

Economic damages are not capped.

Punitive Damages: Punitive damages are available only upon proof of clear and convincing evidence of evil motive or reckless indifference. Mo. Rev. Stat. Section 538.210(8). Punitive damages are capped at the greater of $500,000 or five times the net amount of the judgment.

E. Periodic Payments

Under Mo. Rev. Stat. Section 538.220, for judgments exceeding $100,000, a defendant may elect to make periodic payments of future damages rather than a lump sum.

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

Missouri courts recognize claims for spoliation of evidence. Destruction or alteration of evidence 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]
- [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. Missouri Standard of Care

Under Missouri law, a healthcare provider must exercise "that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant's profession." Shelton v. Steeleville Nursing Home, LLC, 613 S.W.3d 373 (Mo. Ct. App. 2020).

National Standard vs. Locality Rule: Missouri has generally moved away from a strict locality rule toward a national standard of care, particularly for specialists. The relevant community is typically defined by the medical specialty rather than geographic location. Swope v. Printz, 468 S.W.2d 34 (Mo. 1971).

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 certainty, that:

1. The defendant(s) failed to use the degree of skill and learning ordinarily used by competent healthcare providers;
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 is qualified under Mo. Rev. Stat. Section 538.225 to provide the required affidavit.

V. CAUSATION

A. Causation Standard in Missouri

Under Missouri law, the plaintiff must prove that the defendant's breach of the standard of care was the proximate cause of the injury. Wollen v. DePaul Health Center, 828 S.W.2d 681 (Mo. 1992). Proximate cause requires proof that the injury was a natural and probable consequence of the defendant's negligence.

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

B. Loss of Chance Doctrine

Missouri has not definitively recognized or rejected the loss of chance doctrine. Some appellate courts have applied it in limited circumstances, while others have declined. See Wollen v. DePaul Health Center, 828 S.W.2d 681 (Mo. 1992) (discussing but not deciding the issue).

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

C. Res Ipsa Loquitur

[If applicable:] The doctrine of res ipsa loquitur applies to this case. Under Missouri law, res ipsa loquitur may apply in medical malpractice cases when: (1) the defendant had exclusive control of the instrumentality; (2) the injury would not ordinarily occur absent negligence; and (3) the plaintiff did not contribute to the injury. Hasemeier v. Smith, 361 S.W.2d 697 (Mo. 1962).

VI. VICARIOUS LIABILITY AND HOSPITAL LIABILITY

A. Respondeat Superior

Under Missouri law, a hospital may be held vicariously liable for the negligence of its employees under the doctrine of respondeat superior.

B. Apparent Agency / Ostensible Agency

Missouri recognizes the doctrine of apparent agency for hospital liability. A hospital may be held liable for the negligence of independent contractor physicians if: (1) the hospital held out the physician as its employee or agent; (2) the patient relied on that representation; and (3) such reliance was reasonable. Torrence v. Kusminsky, 408 S.W.3d 758 (Mo. 2013).

C. Corporate Negligence

Missouri recognizes claims for direct hospital negligence based on:
- Negligent credentialing of medical staff
- Negligent supervision
- Failure to adopt and enforce adequate policies
- Failure to maintain safe facilities and equipment

D. Government Immunity

Missouri Sovereign Immunity: Claims against public hospitals and state entities are governed by the doctrine of sovereign immunity. However, Missouri has waived sovereign immunity for claims arising from the operation of motor vehicles and for dangerous conditions of public property. Mo. Rev. Stat. Section 537.600.

Medical malpractice claims against state entities may be barred unless the state has purchased liability insurance, which may waive immunity to the extent of coverage.

Public Entity Damage Cap: Claims against public entities are capped at statutory limits. Mo. Rev. Stat. Section 537.610.

VII. INFORMED CONSENT

A. Missouri Informed Consent Standard

Missouri follows a patient-centered standard for informed consent. A physician must disclose information that a reasonable patient would want to know to make an informed decision about treatment. Aiken v. Clary, 396 S.W.2d 668 (Mo. 1965).

B. Required Disclosures

Required disclosures include:
1. The nature of the proposed procedure;
2. The risks of the proposed procedure;
3. Alternative treatments and their risks;
4. The probability of success;
5. The consequences of no treatment.

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 Mo. Rev. Stat. Section 537.080. The action may be brought by:
- The spouse
- Children (natural or adopted)
- Parents or their descendants
- Plaintiff ad litem if no qualified class members

Recoverable Damages:
- Medical and funeral expenses
- Loss of income and services
- Loss of consortium, society, and companionship
- Reasonable compensation for the decedent's pain and suffering before death (survival action)

The wrongful death statute of limitations is three (3) years from the date of death. Mo. Rev. Stat. Section 537.100.

IX. DAMAGES

A. Medical Expenses

Past Medical Expenses:

Future Medical Expenses: $[Amount]

B. Lost Earnings

C. Non-Economic Damages

Subject to Missouri's statutory cap (approximately $400,000 general / $700,000 catastrophic)

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

[If applicable:] The enhanced catastrophic injury cap applies because [describe qualifying injury - death, loss of major bodily function, significant disfigurement].

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].

XI. DOCUMENTATION ENCLOSED

• Complete medical records from all relevant providers
• Medical expense itemization and bills
• Employment and wage loss documentation
• Expert affidavit (to be filed with complaint per Mo. Rev. Stat. Section 538.225)
• 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.

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]
Missouri Bar Number: [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

MISSOURI-SPECIFIC PRACTICE NOTES

Expert Affidavit Required: Must be filed with the complaint. The affidavit must be from a "legally qualified health care provider" who has reviewed the records and believes the standard of care was breached. Mo. Rev. Stat. Section 538.225.

Pure Comparative Fault: Missouri allows recovery regardless of the plaintiff's percentage of fault (unlike modified comparative fault states that bar recovery at 50% or 51%).

Damage Caps Upheld: The Missouri Supreme Court upheld the constitutionality of medical malpractice damage caps in Watts v. Lester E. Cox Medical Centers (2012). Verify current cap amounts.

10-Year Statute of Repose: This is one of the longest in the nation but is strictly enforced.

Loss of Chance: The status of loss of chance doctrine is uncertain in Missouri. Consider alternative theories.

Government Claims: Sovereign immunity issues are complex. Verify whether the entity has waived immunity or purchased insurance.

This template must be customized for the specific facts of your case. Missouri's expert affidavit requirements must be followed. Consult with experienced Missouri medical malpractice counsel.