DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF NEW HAMPSHIRE

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

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 MANDATORY PRE-LITIGATION SCREENING UNDER N.H. REV. STAT. ANN. SECTION 519-B:1.

I. NEW HAMPSHIRE-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

Under New Hampshire Revised Statutes Annotated Section 507-C:4, the statute of limitations for medical malpractice claims is:

Three (3) years from the date of the act or omission complained of, OR three (3) years from the date the plaintiff discovers or reasonably should have discovered the injury and its causal relationship to the act or omission, whichever is later.

No Separate Statute of Repose: Unlike many states, New Hampshire does not have a separate statute of repose for medical malpractice claims. The discovery rule extends the limitations period indefinitely in appropriate cases.

Discovery Rule: The statute does not begin to run until the plaintiff discovers, or through reasonable diligence should have discovered, the injury and its causal connection to the defendant's conduct. Rowe v. Sisters of the Pallottine Missionary Society, 560 A.2d 1137 (N.H. 1989).

Minor Tolling: For minors under age 18, the statute of limitations is tolled until the minor reaches age 18. N.H. Rev. Stat. Ann. Section 508:8.

B. Modified Comparative Negligence

New Hampshire follows a modified comparative negligence standard under N.H. Rev. Stat. Ann. Section 507:7-d. 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. Mandatory Pre-Litigation Screening Panel - CRITICAL

CRITICAL NEW HAMPSHIRE REQUIREMENT: Under N.H. Rev. Stat. Ann. Section 519-B:1, before filing a medical malpractice lawsuit, the claim must be submitted to a Pre-Litigation Screening Panel.

Panel Composition:
- One member of the medical profession (same specialty as defendant if possible)
- One attorney
- One member of the public (a non-medical, non-legal person)

Panel Process:
- Panel hearings are informal
- Panel determines whether the conduct complained of constitutes a deviation from accepted medical practice
- Panel opinion is advisory and non-binding
- Panel findings are admissible at trial unless both parties agree to exclude them

N.H. Rev. Stat. Ann. Section 519-B:4.

Tolling: The statute of limitations is tolled from the date the panel request is filed until 60 days after the panel decision is issued or the proceeding is otherwise concluded. N.H. Rev. Stat. Ann. Section 519-B:11.

Waiver: The parties may agree to waive the panel process. N.H. Rev. Stat. Ann. Section 519-B:10.

We intend to submit this claim to the Pre-Litigation Screening Panel unless settlement is reached or the parties agree to waive the panel requirement.

D. No Damage Caps

New Hampshire has no statutory caps on medical malpractice damages.

Both economic and non-economic damages may be recovered without limitation. New Hampshire courts have resisted attempts to impose damage caps.

E. Punitive Damages

Punitive damages are available in New Hampshire upon proof of malice, bad faith, or reckless indifference to the rights of others. Cluff v. Cullinan Eng'g Co., 600 A.2d 863 (N.H. 1991).

There is no statutory cap on punitive 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

New Hampshire 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. New Hampshire Standard of Care

Under New Hampshire law, a healthcare provider must exercise "the degree of care and skill reasonably to be expected of a member of the defendant's profession acting in the same or similar circumstances." Duprey v. Wilkins, 157 N.H. 502 (2008).

National Standard: New Hampshire 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. Id.

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 New Hampshire

Under New Hampshire law, the plaintiff must prove that the defendant's breach of the standard of care was a "proximate cause" of the injury. Proximate cause requires proof that the defendant's conduct was both a cause in fact and a legal cause of the harm. Estate of Paquette v. Town of Meredith, 140 N.H. 207 (1995).

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

B. Loss of Chance Doctrine

New Hampshire has recognized the loss of chance doctrine in medical malpractice cases. In Lord v. Lovett, 146 N.H. 232 (2001), the New Hampshire Supreme Court held that a patient may recover for the loss of an opportunity for a better outcome when a healthcare provider's negligence reduces that opportunity.

Proportional Recovery: Damages are measured by the lost chance itself, not the full value of the underlying harm. Id.

[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 New Hampshire law, res ipsa loquitur may apply when: (1) the event 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 plaintiff did not contribute to the event. Nestor v. George, 354 A.2d 871 (N.H. 1976).

VI. VICARIOUS LIABILITY AND HOSPITAL LIABILITY

A. Respondeat Superior

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

B. Apparent Agency

New Hampshire 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. Kastner v. Exeter Hosp., Inc., 155 N.H. 676 (2007).

C. Corporate Negligence

New Hampshire 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

Claims against governmental healthcare facilities are governed by New Hampshire's governmental immunity statutes.

Conditional Immunity: Government employees have conditional immunity for acts within the scope of their duties unless they acted with malice, bad faith, or reckless disregard. N.H. Rev. Stat. Ann. Section 99-D:2.

Damage Cap for Government Claims: $475,000 per claimant and $3,750,000 per occurrence. N.H. Rev. Stat. Ann. Section 541-B:14.

Notice Requirements: Claims against the state must be presented within 180 days of the incident. N.H. Rev. Stat. Ann. Section 541-B:14.

VII. INFORMED CONSENT

A. New Hampshire Informed Consent Standard

New Hampshire follows a patient-centered standard (reasonable patient standard) for informed consent. A physician must disclose information that a reasonable patient would want to know to make an informed decision. Folger v. Corbett, 118 N.H. 737 (1978).

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 refusing 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 N.H. Rev. Stat. Ann. Section 556:12. The administrator of the estate may bring the action.

Recoverable Damages:
- Medical and funeral expenses
- Loss of income and earning capacity
- Loss of consortium, society, and companionship
- Conscious pain and suffering of the decedent before death
- Destruction of family relationship

The wrongful death statute of limitations is three (3) years from the date of death. N.H. Rev. Stat. Ann. Section 556:11.

IX. DAMAGES

A. Medical Expenses

Past Medical Expenses:

Future Medical Expenses: $[Amount]

B. Lost Earnings

C. Non-Economic Damages

No statutory cap applies in New Hampshire

• 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].

PRE-LITIGATION SCREENING PANEL: If this matter does not settle, we will submit this claim to the mandatory Pre-Litigation Screening Panel as required by N.H. Rev. Stat. Ann. Section 519-B:1. We invite you to consider waiving the panel process pursuant to N.H. Rev. Stat. Ann. Section 519-B:10 if you believe this claim warrants direct settlement discussions.

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 screening process for all parties.

Please respond within the time specified above.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
New Hampshire Bar Number: [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

NEW HAMPSHIRE-SPECIFIC PRACTICE NOTES

Mandatory Screening Panel: The panel process is mandatory unless waived by agreement. The panel's findings are admissible at trial unless both parties agree to exclude them. Plan for the panel timeline in your case strategy.

No Damage Caps: Unlike many states, New Hampshire has no caps on medical malpractice damages. This is significant for catastrophic injury cases.

No Statute of Repose: New Hampshire's lack of a separate statute of repose means claims may be brought as long as they meet the discovery rule requirements. This is more favorable to plaintiffs than many states.

Loss of Chance: New Hampshire recognizes loss of chance with proportional recovery (Lord v. Lovett), which is helpful in delayed diagnosis cases.

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

Government Claims: Remember the 180-day notice requirement and damage caps ($475,000 per claimant) for claims against governmental entities.

Tolling During Panel: The statute of limitations is tolled during the panel process, which provides additional time.

National Standard of Care: New Hampshire applies a national standard (Duprey v. Wilkins), not a locality rule.

This template must be customized for the specific facts of your case. New Hampshire's mandatory pre-litigation screening requires careful planning. Consult with experienced New Hampshire medical malpractice counsel.