DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF NORTH CAROLINA

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

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Risk Management / Claims Administrator]
[Hospital / Medical Group Name]
[Street Address]
[City, State ZIP]

[Insurance Carrier Name]
[Claims Department]
[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. NORTH CAROLINA-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations and Statute of Repose

Under N.C. Gen. Stat. Section 1-15(c), the statute of limitations for medical malpractice in North Carolina is the later of:

1. Three (3) years from the last act giving rise to the cause of action; OR
2. One (1) year from the date the injury was discovered or reasonably should have been discovered.

However, no action may be commenced more than four (4) years from the last act of the defendant giving rise to the cause of action (statute of repose), except in cases of foreign objects left in the body.

Foreign Object Exception: Where a foreign object has been left in the body, the action may be commenced within one year after discovery. N.C. Gen. Stat. Section 1-15(c).

Applicable Dates:
- Date of last negligent act: [Date]
- Date of discovery: [Date]
- Statute of limitations expires: [Date]
- Statute of repose expires: [Date]

B. Rule 9(j) Expert Certification Requirement

CRITICAL COMPLIANCE: Pursuant to North Carolina Rule of Civil Procedure 9(j), a medical malpractice complaint must be dismissed unless:

1. The pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence; and
2. The expert is willing to testify that the medical care did not comply with the applicable standard of care.

Expert Qualifications Under N.C. Gen. Stat. Section 8C-1, Rule 702(b)-(h):
- The expert must be licensed to practice in the same or similar specialty as the defendant;
- The expert must be familiar with the standard of care;
- For specialists, the expert should practice in the same or similar specialty.

See Trapp v. Maccioli, 129 N.C. App. 237 (1998); Smith v. Serro, 185 N.C. App. 524 (2007).

We have retained a qualified medical expert who meets the requirements of Rule 9(j) and Rule 702, and who is prepared to testify that the defendant's care fell below the applicable standard of care.

C. Contributory Negligence - CRITICAL

NORTH CAROLINA IS ONE OF ONLY FOUR STATES THAT RETAINS PURE CONTRIBUTORY NEGLIGENCE.

Under N.C. Gen. Stat. Section 1-139 and established case law, if a plaintiff is found to have contributed to their injury in any degree, no matter how slight, the plaintiff is completely barred from recovery. Presnell v. Payne, 272 N.C. 11 (1967).

Exceptions:
1. Last Clear Chance: If the defendant had the last clear chance to avoid the injury, contributory negligence may not bar recovery.
2. Gross Negligence/Willful and Wanton Conduct: Contributory negligence is not a defense to claims based on willful or wanton conduct. Yancey v. Lea, 354 N.C. 48 (2001).

Our client was not contributorily negligent in any respect. [He/She] fully complied with all medical instructions and recommendations and in no way contributed to the injuries sustained.

D. Damage Caps

North Carolina does not have damage caps on medical malpractice damages. Previous attempts to impose caps were struck down as unconstitutional in Rhyne v. K-Mart Corp., 358 N.C. 160 (2004) (holding statutory cap on non-economic damages in personal injury cases violated the right to trial by jury).

Punitive Damages: Punitive damages are available under N.C. Gen. Stat. Section 1D-15 upon proof of fraud, malice, or willful or wanton conduct. Punitive damages are capped at the greater of three times compensatory damages or $250,000.

E. Vicarious Liability

North Carolina recognizes hospital vicarious liability under:

1. Respondeat Superior: Hospitals are liable for the negligence of employees acting within the scope of employment. Rabon v. Rowan Mem'l Hosp., 269 N.C. 1 (1967).

2. Apparent Agency: Hospitals may be liable for the acts of independent contractor physicians if the hospital held out the physician as its employee and the patient relied on that representation. Diggs v. Novant Health, Inc., 177 N.C. App. 290 (2006).

3. Corporate Negligence: Hospitals have an independent duty to exercise reasonable care in the selection, retention, and granting of privileges to medical staff.

F. Informed Consent

North Carolina recognizes a cause of action for lack of informed consent. A physician must disclose:
1. The nature of the procedure;
2. The risks and consequences;
3. Alternatives;
4. The probability of success.

The standard is a reasonable patient standard - what a reasonable patient would consider material in making the decision. Foard v. Jarman, 326 N.C. 24 (1990).

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
• Incident/occurrence reports
• Peer review and quality assurance records
• Policies, procedures, and protocols in effect at the time of treatment
• Credentialing files for involved healthcare providers
• Staffing records and schedules

Spoliation Warning: North Carolina courts recognize an adverse inference instruction for spoliation of evidence. McLain v. Taco Bell Corp., 137 N.C. App. 179 (2000).

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]

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. Absence of Contributory Negligence

At all relevant times, our client:
- Fully complied with all medical instructions and recommendations
- Provided complete and accurate medical history information
- Followed prescribed treatment regimens
- Attended all scheduled appointments
- Did not engage in any conduct that contributed to the injury

Our client bears absolutely no responsibility for the injuries sustained.

IV. STANDARD OF CARE ANALYSIS

A. Applicable Standard of Care

Under North Carolina 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 practitioners in the same field. Henry v. Southeastern OB-GYN Assocs., 363 N.C. 208 (2009).

North Carolina has moved toward a national standard of care for specialists while still considering relevant circumstances. The strict locality rule is no longer applied. See Wall v. Stout, 310 N.C. 184 (1984).

The applicable standard of care required [Defendant] to:

• [Standard 1]
• [Standard 2]
• [Standard 3]
• [Standard 4]

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]
- What the standard required: [Describe]
- What the provider did or failed to do: [Describe]
- How this deviated from the standard: [Describe]

Breach 2: [Detailed description]

Breach 3: [Continue as needed]

C. Res Ipsa Loquitur

North Carolina recognizes the doctrine of res ipsa loquitur in limited medical malpractice circumstances. The doctrine applies when:
1. The injury is of a kind that ordinarily does not occur in the absence of negligence;
2. The instrumentality causing the injury was within the exclusive control of the defendant;
3. The plaintiff did not contribute to the injury.

See Diehl v. Koffer, 140 N.C. App. 375 (2000).

[If applicable: The circumstances of this case warrant application of res ipsa loquitur because...]

D. Expert Opinion Summary

We have retained [Expert Name, M.D.], a board-certified [Specialty] physician who meets the qualifications required under N.C.R. Evid. 702 and N.C.R. Civ. P. 9(j). [Dr./Expert Name] has concluded, to a reasonable degree of medical certainty, that:

1. [Defendant Provider] departed from the applicable standard of care;
2. Such departure was a proximate cause of [Client Name]'s injuries;
3. Had appropriate care been rendered, [describe what would have occurred].

V. CAUSATION

A. Proximate Causation

Under North Carolina law, the plaintiff must prove that the defendant's negligence was a proximate cause of the injury. Proximate cause exists when the injury was the foreseeable consequence of the defendant's negligence. Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227 (1984).

The defendant's negligence was a proximate cause of our client's injuries because:

• [Causal link 1]
• [Causal link 2]
• [Causal link 3]

B. Loss of Chance Doctrine

North Carolina has not adopted a pure "loss of chance" theory as an independent cause of action. However, where the defendant's negligence was a substantial factor in causing injury or death, recovery is permitted even if the patient's pre-existing condition was a contributing cause. See Elliott v. N.C. Baptist Hosp., Inc., 235 N.C. App. 505 (2014).

VI. INJURIES AND DAMAGES

A. Physical Injuries

As a direct and proximate result of the defendant's medical negligence, our client has suffered:

Primary Injuries:
- [Injury 1]
- [Injury 2]
- [Injury 3]

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

Pain and Suffering:
[Describe the pain caused by the malpractice]

Emotional Distress:
[Describe psychological impact]

Loss of Enjoyment of Life:
[Describe activities and experiences lost]

Disfigurement/Permanent Impairment:
[Describe any permanent effects]

E. Summary of Damages

VII. SETTLEMENT DEMAND

Based upon the clear departure from the standard of care, the severity of our client's injuries, the complete absence of contributory negligence, and the substantial damages, we hereby demand:

$[DEMAND AMOUNT]

[OR: TENDER OF FULL POLICY LIMITS OF $[AMOUNT]]

This demand will remain open for forty-five (45) days from the date of this letter, through and including [Expiration Date].

VIII. INSURANCE INFORMATION REQUEST

We request 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

IX. WRONGFUL DEATH

[If applicable:]

Wrongful Death Act - N.C. Gen. Stat. Section 28A-18-2: The personal representative may bring a wrongful death action for the benefit of the decedent's estate. Recoverable damages include:
- Medical and funeral expenses
- Loss of services, companionship, and society
- Pecuniary losses
- Pain and suffering of the decedent (if applicable)
- Punitive damages (if warranted)

Two-Year Statute of Limitations: Wrongful death actions must be commenced within two years of death. N.C. Gen. Stat. Section 1-53(4).

X. GOVERNMENTAL IMMUNITY

[If public hospital or government healthcare provider involved:]

North Carolina's Tort Claims Act, N.C. Gen. Stat. Section 143-291 et seq., governs claims against the State and its employees. Claims must be filed with the Industrial Commission within three years.

[For local government entities, check for governmental immunity waivers and insurance coverage.]

XI. DOCUMENTATION ENCLOSED

• Medical records (relevant portions)
• Medical bills and itemized statements
• Employment and wage verification
• Photographs documenting injuries/condition
• HIPAA authorizations

XII. CONCLUSION

This case involves clear medical negligence causing significant, life-altering injuries to our client. The departure from the standard of care is supported by qualified expert opinion meeting the requirements of Rule 9(j), and the causal connection between the negligence and our client's injuries is direct and well-documented.

Our client was in no way contributorily negligent, having fully complied with all medical advice and recommendations.

We are prepared to file suit in the General Court of Justice, Superior Court Division, [County] County, North Carolina, and to pursue this matter through trial if necessary.

We urge you to give this matter serious attention and to respond promptly.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
North Carolina State Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: [List]

cc: [Client Name]
[File]

NORTH CAROLINA-SPECIFIC PRACTICE NOTES

Rule 9(j) Certification - CRITICAL:
- Complaint must contain certification of expert review
- Expert must reasonably qualify under Rule 702
- Failure to include certification is grounds for dismissal
- 60-day extension available for good cause (once only)
- Consider filing under seal with early discovery

Contributory Negligence - HIGHEST PRIORITY:
- Any plaintiff fault bars all recovery
- Aggressively document patient compliance
- Consider last clear chance doctrine if applicable
- Jury instruction battles are critical

Expert Witness Standards (Rule 702):
- Licensed to practice in same or similar specialty
- Must be familiar with standard of care
- Out-of-state experts must demonstrate familiarity with applicable standards

Statute of Repose:
- Hard 4-year cutoff from last act (except foreign objects)
- No tolling for minority after age 10
- Plan case filing carefully

Mediated Settlement Conferences:
- Required in most medical malpractice cases
- N.C. Gen. Stat. Section 7A-38.1
- Mediator must be certified

Punitive Damages (N.C. Gen. Stat. Section 1D):
- Must plead with specificity
- Require fraud, malice, or willful/wanton conduct
- Cap: Greater of 3x compensatory or $250,000

This template must be customized for the specific facts and circumstances of your case. North Carolina's contributory negligence rule makes thorough documentation of patient compliance essential. The Rule 9(j) certification is mandatory. Always verify current law and consult with experienced North Carolina medical malpractice counsel.