DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF MONTANA

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

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. MONTANA-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

Under Montana Code Annotated Section 27-2-205, the statute of limitations for medical malpractice claims is:

Three (3) years from the date of injury or from the date the claimant discovered or through reasonable diligence should have discovered the injury, whichever occurs last.

Statute of Repose: The claim must be brought within five (5) years from the date of the act or omission, regardless of when the injury was discovered. Mont. Code Ann. Section 27-2-205(2).

Exceptions to Statute of Repose:
- Foreign objects left in the body
- Fraudulent concealment by the healthcare provider

Discovery Rule: Montana applies the discovery rule. The statute does not begin to run until the plaintiff discovers, or through reasonable diligence should have discovered, the injury and its potential connection to medical malpractice. Mayer v. St. Patrick's Hospital, 741 P.2d 389 (Mont. 1987).

Minor Tolling: For minors, the statute of limitations is tolled until the minor reaches age 18, but the 5-year statute of repose still applies unless the minor was under age 4 at the time of the malpractice, in which case the claim must be filed before the child's 8th birthday. Mont. Code Ann. Section 27-2-401.

B. Modified Comparative Negligence

Montana follows a modified comparative negligence standard under Mont. Code Ann. Section 27-1-702. A plaintiff may recover damages reduced by their percentage of fault, but if the plaintiff's fault is 50% or greater, recovery is completely barred.

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

C. No Mandatory Pre-Suit Requirements

Montana does not require a certificate of merit, affidavit of merit, or pre-suit notice period before filing a medical malpractice lawsuit.

However, expert testimony is required at trial to establish the standard of care and breach. Mont. Code Ann. Section 26-2-601.

D. Damage Caps - IMPORTANT NOTICE

Montana's non-economic damage cap in medical malpractice cases was declared unconstitutional by the Montana Supreme Court in Meech v. Hillhaven West, Inc., 776 P.2d 488 (Mont. 1989).

There are currently no caps on non-economic damages in Montana medical malpractice cases.

Both economic and non-economic damages may be recovered without limitation.

E. Punitive Damages

Punitive damages are available in Montana upon proof of actual fraud or actual malice. Mont. Code Ann. Section 27-1-221. There is no cap on punitive damages, but they require a bifurcated trial with punitive damages determined after liability and compensatory damages.

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

Montana 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. Montana Standard of Care

Under Montana 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 reasonably competent health care providers." Mayer v. St. Patrick's Hospital, 741 P.2d 389 (Mont. 1987).

National Standard: Montana generally applies a national standard of care for medical specialists, rather than a strict locality rule. The standard reflects the degree of care provided by competent practitioners 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 Opinion

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 Montana

Under Montana law, the plaintiff must prove that the defendant's breach of the standard of care was a "cause in fact" and a proximate cause of the injury. Mont. Code Ann. Section 27-1-317.

A defendant's conduct is a "cause in fact" of the plaintiff's injury if the injury would not have occurred "but for" the defendant's conduct. Estate of Strever v. Cline, 924 P.2d 666 (Mont. 1996).

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

B. Loss of Chance Doctrine

Montana recognizes the loss of chance doctrine in medical malpractice cases. In Estate of Gleason v. Cent. Cmty. Hosp., 203 P.3d 808 (Mont. 2009), the Montana Supreme Court recognized that a patient may recover for the loss of chance of survival or better outcome when a healthcare provider's negligence reduces that chance.

[If applicable:] The defendant's negligence 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 Montana law, res ipsa loquitur may apply when: (1) the injury is of a kind that does not ordinarily occur absent negligence; (2) the instrumentality was within the exclusive control of the defendant; and (3) the plaintiff did not contribute to the injury. Safeway Stores, Inc. v. City of Raytown, 633 P.2d 1173 (Mont. 1981).

VI. VICARIOUS LIABILITY AND HOSPITAL LIABILITY

A. Respondeat Superior

Under Montana law, a hospital may be held vicariously liable for the negligence of its employees under the doctrine of respondeat superior. Holton v. Sisters of the Third Order of St. Dominic of Congregation of the Holy Rosary, 618 P.2d 867 (Mont. 1980).

B. Apparent Agency

Montana 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.

C. Corporate Negligence

Montana 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

Montana Governmental Immunity: Claims against state and local governmental entities are governed by Mont. Code Ann. Section 2-9-101 et seq.

Montana has waived sovereign immunity for negligent acts of governmental entities and employees acting within the scope of their duties. Mont. Code Ann. Section 2-9-102.

Damage Limits for Government Claims:
- $1,500,000 per claimant for claims against the state
- $750,000 per claimant for claims against local governments

Mont. Code Ann. Section 2-9-108.

Notice Requirements: Claims against governmental entities generally must be filed within three (3) years (same as standard statute of limitations).

VII. INFORMED CONSENT

A. Montana Informed Consent Standard

Montana follows a 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.

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.

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 Mont. Code Ann. Section 27-1-513. The personal representative of the estate may bring the action for the benefit of the heirs.

Recoverable Damages:
- Medical and funeral expenses
- Loss of income and services
- Loss of consortium, society, and companionship
- Pain and suffering of the decedent before death
- Punitive damages (if applicable)

The wrongful death statute of limitations is three (3) years from the date of death. Mont. Code Ann. Section 27-2-204.

IX. DAMAGES

A. Medical Expenses

Past Medical Expenses:

Future Medical Expenses: $[Amount]

B. Lost Earnings

C. Non-Economic Damages

No statutory cap applies in Montana (caps declared unconstitutional)

• 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].

XI. DOCUMENTATION ENCLOSED

• Complete medical records from all relevant providers
• Medical expense itemization and bills
• Employment and wage loss documentation
• Expert opinion letter
• 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]
Montana Bar Number: [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

MONTANA-SPECIFIC PRACTICE NOTES

No Damage Caps: Montana's non-economic damage cap was struck down as unconstitutional in Meech v. Hillhaven West (1989). Unlike many states, Montana allows full recovery for non-economic damages.

No Pre-Suit Requirements: Montana does not require certificates of merit or pre-suit notice. However, expert testimony is essential at trial.

5-Year Statute of Repose: Be aware of the 5-year absolute deadline from the date of the negligent act.

Loss of Chance: Montana recognizes loss of chance doctrine (Estate of Gleason), which can be helpful in delayed diagnosis cases.

50% Comparative Fault Bar: If the plaintiff is 50% or more at fault, recovery is barred entirely.

Government Claims: Montana has waived immunity for governmental entities but caps apply ($1.5 million for state; $750,000 for local).

Rural Practice Considerations: Given Montana's rural nature, be prepared to address how the standard of care applies to rural practitioners and facilities with limited resources.

This template must be customized for the specific facts of your case. Montana medical malpractice law has unique features including no damage caps. Consult with experienced Montana medical malpractice counsel.