DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF MISSISSIPPI

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

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: PRE-SUIT NOTICE OF MEDICAL MALPRACTICE CLAIM
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)].

NOTICE: THIS LETTER CONSTITUTES THE 60-DAY PRE-SUIT NOTICE REQUIRED BY MISS. CODE ANN. SECTION 11-1-58.

This letter initiates the statutory pre-suit notice period.

I. MISSISSIPPI-SPECIFIC LEGAL FRAMEWORK

A. Pre-Suit Notice Requirement - 60 Days

THIS NOTICE IS PROVIDED PURSUANT TO MISS. CODE ANN. SECTION 11-1-58

Under Mississippi law, a plaintiff must provide written notice to each defendant at least 60 days before filing a medical malpractice action. Miss. Code Ann. Section 11-1-58(1).

This notice must be sent by certified mail to each healthcare provider and healthcare institution against whom a claim will be made.

This letter satisfies the statutory notice requirement. The 60-day period began upon mailing of this notice.

B. Certificate of Consultation Requirement

Under Miss. Code Ann. Section 11-1-58(1), the plaintiff's attorney must file a certificate of consultation with the complaint certifying that:

1. Counsel has consulted with a qualified expert; and
2. Based on that consultation and review of the medical records, counsel has concluded in good faith that the claim has merit.

Failure to file the certificate may result in dismissal and an award of attorney's fees and costs. Miss. Code Ann. Section 11-1-58(2).

We hereby certify that we have consulted with a qualified expert and have concluded in good faith that this claim has merit.

C. Statute of Limitations and Repose

Under Miss. Code Ann. Section 15-1-36, the statute of limitations for medical malpractice claims is:

General Rule: Two (2) years from the date the alleged act, omission, or neglect was or with reasonable diligence might have been discovered.

Statute of Repose: The claim must be brought within seven (7) years of the act or omission, regardless of when the injury was discovered. Miss. Code Ann. Section 15-1-36(2).

Discovery Rule: The discovery rule applies in Mississippi. The limitations period does not begin until the patient discovers, or reasonably should have discovered, the injury and its causal connection to the defendant's conduct. Sarris v. Smith, 782 So. 2d 721 (Miss. 2001).

Minor Tolling: For minors, the statute of limitations does not begin to run until the minor reaches age 18, but claims must be brought before the child's 20th birthday. Miss. Code Ann. Section 15-1-59.

D. Pure Comparative Negligence

Mississippi follows a pure comparative negligence standard under Miss. Code Ann. Section 11-7-15. A plaintiff may recover damages reduced by their percentage of fault, regardless of the degree of fault. Even if the plaintiff is 99% at fault, they may still recover 1% of their damages.

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

E. Damage Caps

Mississippi imposes caps on non-economic damages under Miss. Code Ann. Section 11-1-60:

General Cap: $500,000 for non-economic damages

Catastrophic Injury Cap: $1,000,000 for cases involving:
- Wrongful death
- Permanent and total disability preventing the person from performing any gainful work
- Permanent and significant disfigurement
- Loss or permanent impairment of a major bodily function

Economic damages are not capped.

Punitive Damages: Punitive damages are not available in medical malpractice cases unless the defendant acted with actual malice, gross negligence, or reckless disregard. Miss. Code Ann. Section 11-1-65.

F. Joint and Several Liability

Mississippi has abolished joint and several liability in most cases. Under Miss. Code Ann. Section 85-5-7, each defendant is liable only for their proportionate share of fault, except in cases of intentional conduct.

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

Mississippi courts recognize the doctrine of spoliation. 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. Mississippi Standard of Care

Under Mississippi law, a healthcare provider must exercise "that degree of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by other reasonably competent [specialists] in the same field." Hall v. Hilbun, 466 So. 2d 856 (Miss. 1985).

National Standard: Mississippi applies a national standard of care rather than a locality rule. The standard is not limited to the local community but encompasses the standards of the national medical community. Hall v. Hilbun, 466 So. 2d 856 (Miss. 1985).

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.

V. CAUSATION

A. Causation Standard in Mississippi

Under Mississippi law, the plaintiff must prove that the defendant's breach of the standard of care was both a cause in fact and a proximate cause of the injury. Reikes v. Martin, 471 So. 2d 385 (Miss. 1985).

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

B. Loss of Chance Doctrine

Mississippi does not recognize the loss of chance doctrine as an independent cause of action. Ladner v. Campbell, 515 So. 2d 882 (Miss. 1987). A plaintiff must prove by a preponderance of the evidence that the defendant's negligence was a proximate cause of the injury.

C. Res Ipsa Loquitur

[If applicable:] The doctrine of res ipsa loquitur applies to this case. Under Mississippi law, res ipsa loquitur may apply in medical malpractice cases when: (1) the injury is of a kind that ordinarily does not occur absent negligence; (2) the instrumentality was within the exclusive control of the defendant; and (3) the injury was not due to any voluntary action of the plaintiff. Leach v. Drummond Medical Group, 144 So. 3d 1117 (Miss. Ct. App. 2014).

VI. VICARIOUS LIABILITY AND HOSPITAL LIABILITY

A. Respondeat Superior

Under Mississippi law, a hospital may be held vicariously liable for the negligence of its employees under the doctrine of respondeat superior. Vicarious liability applies when the employee is acting within the scope of employment.

B. Apparent Agency

Mississippi 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 reasonably relied on that representation; and (3) the patient did not know or should not have known of the independent contractor relationship.

C. Corporate Negligence

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

D. Government Immunity - Mississippi Tort Claims Act

Claims against state governmental entities and employees are governed by the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. Section 11-46-1 et seq.

Notice Requirement: Written notice must be filed with the chief executive officer of the governmental entity within one (1) year of the act or omission. Miss. Code Ann. Section 11-46-11.

Damage Cap: $500,000 per occurrence. Miss. Code Ann. Section 11-46-15.

Immunity: Governmental entities are immune from punitive damages. Certain discretionary functions are also immune.

VII. INFORMED CONSENT

A. Mississippi Informed Consent Standard

Mississippi follows a professional standard (physician-based) for informed consent. Under this standard, a physician must disclose information that a reasonable physician in the same specialty would disclose under similar circumstances.

B. Required Disclosures

Required disclosures include:
1. The nature of the procedure;
2. The risks of the procedure;
3. Alternative treatments and their risks;
4. 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 Miss. Code Ann. Section 11-7-13. The personal representative of the estate may bring the action for the benefit of the surviving spouse, children, parents, or siblings.

Recoverable Damages:
- Medical and funeral expenses
- Loss of income and earning capacity
- Loss of consortium, society, and companionship
- Pain and suffering of the decedent before death

The wrongful death statute of limitations is three (3) years from the date of death. Miss. Code Ann. Section 15-1-36(3).

IX. DAMAGES

A. Medical Expenses

Past Medical Expenses:

Future Medical Expenses: $[Amount]

B. Lost Earnings

C. Non-Economic Damages

Subject to Mississippi's statutory cap of $500,000 (or $1,000,000 for catastrophic injuries)

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

[If applicable:] The $1,000,000 catastrophic injury cap applies because [describe qualifying catastrophic injury].

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].

The 60-day pre-suit notice period expires on [Date]. We encourage you to use this time for good-faith settlement discussions.

XI. DOCUMENTATION ENCLOSED

• Complete medical records from all relevant providers
• Medical expense itemization and bills
• Employment and wage loss documentation
• Expert affidavit (certificate of consultation 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.

The 60-day pre-suit period provides an opportunity for meaningful settlement discussions. We encourage you to evaluate the claim carefully and engage in good-faith negotiations.

Please respond within the time specified above.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: As noted above

cc: [Client Name]
[All Healthcare Providers Receiving Notice]
File

MISSISSIPPI-SPECIFIC PRACTICE NOTES

60-Day Pre-Suit Notice: Required before filing suit. The statute of limitations is tolled during the notice period. Miss. Code Ann. Section 11-1-58.

Certificate of Consultation: Must be filed with the complaint. Failure to file may result in dismissal and fee-shifting. Ensure expert has reviewed records and supports the claim.

Pure Comparative Fault: Unlike many states, Mississippi allows recovery even if the plaintiff is more than 50% at fault.

No Joint and Several Liability: Each defendant pays only their percentage of fault (with limited exceptions).

No Loss of Chance: Mississippi does not recognize loss of chance doctrine. Traditional causation must be proven.

National Standard of Care: Hall v. Hilbun established the national standard, rejecting the locality rule.

Damage Caps: $500,000 for most cases; $1,000,000 for catastrophic injuries (death, permanent total disability, significant disfigurement, loss of major bodily function).

Government Claims: Remember the one-year notice requirement and $500,000 cap for claims under the MTCA.

This template must be customized for the specific facts of your case. Mississippi's pre-suit requirements must be strictly followed. Consult with experienced Mississippi medical malpractice counsel.