DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF NEBRASKA

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

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.

NOTICE: THIS CLAIM IS SUBJECT TO THE NEBRASKA HOSPITAL-MEDICAL LIABILITY ACT.

I. NEBRASKA-SPECIFIC LEGAL FRAMEWORK

A. Nebraska Hospital-Medical Liability Act

Nebraska medical malpractice claims are governed by the Hospital-Medical Liability Act, Neb. Rev. Stat. Section 44-2801 et seq. This Act establishes specific procedures and limitations for medical malpractice claims.

B. Mandatory Medical Review Panel - CRITICAL

CRITICAL NEBRASKA REQUIREMENT: Under Neb. Rev. Stat. Section 44-2840, before filing suit, a claimant must present the claim to a Medical Review Panel for review.

Panel Composition:
- Three physicians (one selected by claimant, one by defendant, one by agreement or the Director of Insurance)
- One attorney (non-voting)

Panel Functions:
- Reviews medical records and other evidence
- Determines whether the standard of care was met
- Issues a written opinion

Panel Opinion: The panel's opinion is admissible at trial but is not binding on the jury. Neb. Rev. Stat. Section 44-2844.

Waiver: The panel process may be waived by agreement of all parties. Neb. Rev. Stat. Section 44-2841.

We intend to file this claim with the Medical Review Panel unless settlement is reached or the parties agree to waive the panel requirement.

C. Statute of Limitations

Under Neb. Rev. Stat. Section 44-2828, the statute of limitations for medical malpractice claims is the later of:

1. Two (2) years from the date of the alleged act or omission; OR
2. One (1) year from the date the alleged injury was discovered or should have been discovered.

Statute of Repose: No action may be commenced more than ten (10) years from the date of the act or omission, regardless of discovery. Neb. Rev. Stat. Section 44-2828.

Tolling for Panel Review: The statute of limitations is tolled while the claim is pending before the Medical Review Panel. Neb. Rev. Stat. Section 44-2840.01.

Minor Tolling: For minors under age 6 at the time of malpractice, the statute of limitations does not begin until the child reaches age 6.

D. Modified Comparative Negligence

Nebraska follows a modified comparative negligence standard under Neb. Rev. Stat. Section 25-21,185.09. A plaintiff may recover damages reduced by their percentage of fault, but if the plaintiff's fault is 50% or greater than the defendant's fault, 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.

E. Total Damage Cap - CRITICAL

Nebraska imposes a total cap on all damages (economic AND non-economic combined) under Neb. Rev. Stat. Section 44-2825:

Current Cap: $2,250,000 total damages

This cap applies to qualified healthcare providers who participate in the Excess Liability Fund.

Excess Liability Fund: Healthcare providers who pay into the Excess Liability Fund are entitled to the benefit of the cap. The Fund pays claims exceeding the provider's primary insurance limits up to the cap.

F. Qualified Healthcare Providers

The Hospital-Medical Liability Act applies to "qualified healthcare providers" who:
- Maintain professional liability insurance of at least $500,000/$1,000,000; and
- Pay a surcharge to the Excess Liability Fund.

Neb. Rev. Stat. Section 44-2824.

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

Nebraska 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. Nebraska Standard of Care

Under Nebraska 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." Frady v. Physicians Mutual Ins. Co., 546 N.W.2d 813 (Neb. 1996).

National Standard: Nebraska applies a national standard of care rather than a locality rule. The standard is based on the care expected of reasonably competent practitioners nationwide, not just within the local community.

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 Nebraska

Under Nebraska law, the plaintiff must prove that the defendant's breach of the standard of care was a proximate cause of the injury. Chin v. Neben, 603 N.W.2d 436 (Neb. 1999).

Proximate cause requires proof that (1) the defendant's conduct was a cause in fact of the injury (but for causation); and (2) the injury was a foreseeable 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

Nebraska has not clearly adopted or rejected the loss of chance doctrine. The Nebraska Supreme Court has not definitively ruled on whether loss of chance is a recognized theory of recovery.

[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 Nebraska law, res ipsa loquitur may apply 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 act of the plaintiff. Freeman v. Olson Constr. Co., 343 N.W.2d 292 (Neb. 1984).

VI. VICARIOUS LIABILITY AND HOSPITAL LIABILITY

A. Respondeat Superior

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

B. Apparent Agency

Nebraska 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. Prendergast v. Nelson, 256 N.W.2d 657 (Neb. 1977).

C. Corporate Negligence

Nebraska 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

Nebraska Political Subdivisions Tort Claims Act: Claims against governmental healthcare facilities are governed by Neb. Rev. Stat. Section 13-901 et seq.

Nebraska State Tort Claims Act: Claims against state entities are governed by Neb. Rev. Stat. Section 81-8,209 et seq.

Notice Requirements: Claims must be filed within two (2) years of the occurrence.

Damage Caps for Government Claims:
- $1,000,000 per occurrence (political subdivisions)
- The state waives immunity to the same extent as political subdivisions

VII. INFORMED CONSENT

A. Nebraska Informed Consent Standard

Nebraska 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 Neb. Rev. Stat. Section 30-809. The personal representative of the estate may bring the action.

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

The wrongful death statute of limitations is two (2) years from the date of death.

IX. DAMAGES

A. Medical Expenses

Past Medical Expenses:

Future Medical Expenses: $[Amount]

B. Lost Earnings

C. Non-Economic Damages

Subject to Nebraska's total damage cap of $2,250,000 (combined economic and non-economic)

• 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].

MEDICAL REVIEW PANEL: If this matter does not settle, we intend to file a claim with the Nebraska Medical Review Panel as required by the Hospital-Medical Liability Act. We invite you to consider waiving the panel requirement pursuant to Neb. Rev. Stat. Section 44-2841 if you believe this claim warrants direct settlement discussions or litigation.

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. Pre-panel settlement would avoid the expense and delay of the Medical Review Panel process for all parties.

Please respond within the time specified above.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: As noted above

cc: [Client Name]
File

NEBRASKA-SPECIFIC PRACTICE NOTES

Medical Review Panel: This is a mandatory pre-suit requirement unless waived. The panel process can take 6-12 months or longer. The panel's opinion is admissible but not binding. Plan for this timeline.

Total Damage Cap: Nebraska's cap is unique because it applies to TOTAL damages (economic plus non-economic), not just non-economic. This is particularly significant in catastrophic injury cases.

Excess Liability Fund: Only qualified healthcare providers benefit from the cap. Verify whether the defendant is a qualified provider.

Tolling During Panel: The statute of limitations is tolled while the claim is pending before the panel. File with the panel before the statute expires.

50% Comparative Fault Bar: If the plaintiff's fault equals or exceeds 50%, recovery is barred.

No Clear Loss of Chance: Nebraska has not definitively adopted loss of chance doctrine. Consider alternative theories in delayed diagnosis cases.

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

This template must be customized for the specific facts of your case. Nebraska's mandatory panel process requires careful planning and timing. Consult with experienced Nebraska medical malpractice counsel.