DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF NEW JERSEY

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

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. NEW JERSEY-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

Under N.J.S.A. 2A:14-2, the statute of limitations for medical malpractice claims in New Jersey is two (2) years from the date the cause of action accrues. The New Jersey Supreme Court has held that the discovery rule applies, and the limitations period begins to run when the patient knows or reasonably should know of the injury and its cause. Lopez v. Swyer, 62 N.J. 267 (1973); Baird v. American Medical Optics, 155 N.J. 54 (1998).

Applicable Dates:
- Date of negligent care: [Date]
- Date of discovery: [Date]
- Statute of limitations expires: [Date]

B. Affidavit of Merit Requirement

CRITICAL COMPLIANCE: Pursuant to N.J.S.A. 2A:53A-27 (Affidavit of Merit Statute), within 60 days following the date of the defendant's answer, plaintiff must provide an affidavit of an appropriate licensed person stating that there is a reasonable probability that the care, skill, or knowledge exercised or exhibited in the treatment, practice, or work that is the subject of the complaint fell outside acceptable professional or occupational standards.

We have retained a qualified medical expert who will provide the required affidavit of merit. Our expert has reviewed the relevant medical records and has concluded that the defendant's care fell below the applicable standard of care.

Expert Qualifications Under New Jersey Law:
The affidavit must be from a physician who:
- Is licensed as a physician in the United States;
- Is a specialist or subspecialist recognized by the American Board of Medical Specialties (ABMS) or the American Osteopathic Association (AOA) in the same specialty or subspecialty as the defendant; and
- Is actively practicing or teaching within the same specialty or subspecialty.

See Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003); Nicholas v. Mynster, 213 N.J. 463 (2013).

C. Modified Comparative Negligence

New Jersey follows a modified comparative negligence standard under N.J.S.A. 2A:15-5.1. A plaintiff may recover damages only if their percentage of negligence is not greater than the combined negligence of the defendants. If the plaintiff is more than 50% at fault, recovery is barred. If the plaintiff is 50% or less at fault, damages are reduced by the percentage of fault attributable to the plaintiff.

Our client bears no responsibility for the negligent medical care received.

D. Damage Caps

New Jersey does not impose caps on economic or non-economic damages in medical malpractice cases.

Punitive Damages: Pursuant to N.J.S.A. 2A:15-5.14, punitive damages are capped at the greater of $350,000 or five (5) times the compensatory damages. Punitive damages require proof by clear and convincing evidence of actual malice or wanton and willful disregard for safety. See N.J.S.A. 2A:15-5.12.

E. Vicarious Liability

New Jersey recognizes vicarious liability for hospitals under the doctrines of:

1. Respondeat Superior: Hospitals are liable for the negligence of their employees acting within the scope of employment. Schroeder v. Perkel, 87 N.J. 53 (1981).

2. Apparent/Ostensible Agency: Hospitals may be liable for the acts of independent contractor physicians if the patient reasonably believed the physician was a hospital employee. Arthur v. St. Peters Hospital, 169 N.J. Super. 575 (App. Div. 1979).

3. Corporate Negligence: Hospitals have an independent duty to monitor and oversee medical care. See Corleto v. Shore Memorial Hospital, 138 N.J. Super. 302 (App. Div. 1975).

F. Informed Consent

New Jersey recognizes a cause of action for lack of informed consent separate from negligence. A physician has a duty to disclose to the patient all information material to the patient's decision whether to undergo treatment. Largey v. Rothman, 110 N.J. 204 (1988) (adopting prudent patient standard). The standard is what a reasonable patient would consider material, not what a reasonable physician would disclose.

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 showing modifications)
• 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
• Equipment maintenance and calibration records
• Training records for involved personnel

Spoliation Warning: New Jersey courts impose severe sanctions for spoliation of evidence, including adverse inference instructions and, in egregious cases, dismissal or default. Hirsch v. General Motors Corp., 266 N.J. Super. 222 (Law Div. 1993).

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. Discovery of Malpractice

Our client [did not discover / could not have reasonably discovered] the malpractice until [Date], when [describe discovery circumstances]. This discovery date is significant for statute of limitations purposes under New Jersey's discovery rule as articulated in Lopez v. Swyer, 62 N.J. 267 (1973).

IV. STANDARD OF CARE ANALYSIS

A. Applicable Standard of Care

Under New Jersey law, a physician must exercise that degree of care, knowledge, and skill ordinarily possessed and exercised by members of the medical profession in good standing. Schueler v. Strelinger, 43 N.J. 330 (1964).

New Jersey has largely abandoned the locality rule in favor of a national standard of care for specialists and board-certified physicians. See Largey v. Rothman, 110 N.J. 204 (1988).

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

New Jersey recognizes the doctrine of res ipsa loquitur in appropriate medical malpractice cases. See Buckelew v. Grossbard, 87 N.J. 512 (1981). The doctrine may apply where:
1. The occurrence is one that ordinarily does not happen without negligence;
2. The instrumentality causing the injury was within the exclusive control of the defendant; and
3. The plaintiff did not contribute to the injury.

[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 with [number] years of experience, who meets the qualifications required under N.J.S.A. 2A:53A-41. [Dr./Expert Name] has concluded, to a reasonable degree of medical probability, that:

1. [Defendant Provider] breached the applicable standard of care by [summarize breaches];
2. These breaches were a direct and proximate cause of [Client Name]'s injuries;
3. Had appropriate care been rendered, [describe what would have occurred].

V. CAUSATION

A. Factual and Proximate Causation

Under New Jersey law, the plaintiff must prove that the defendant's negligence was a proximate cause of the injury - that is, it was a substantial factor in bringing about the harm. Scafidi v. Seiler, 119 N.J. 93 (1990).

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

New Jersey recognizes the increased risk of harm / loss of chance doctrine. Under Scafidi v. Seiler, 119 N.J. 93 (1990), where a defendant's negligence reduces the patient's chance of a better outcome, the plaintiff may recover damages proportional to the lost chance, provided the lost chance was a "substantial factor" in producing the ultimate harm.

[If applicable: Due to the defendant's negligence, our client lost a [percentage]% chance of [survival/recovery/better outcome]. Under Scafidi, this constitutes compensable harm.]

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 breach of the standard of care, the severity of our client's injuries, 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

Pursuant to discovery obligations and in good faith, 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 AND SURVIVAL ACTIONS

[If applicable:]

Wrongful Death Act - N.J.S.A. 2A:31-1 et seq.: [Decedent]'s surviving family members have claims for pecuniary losses, including loss of financial support, services, and guidance.

Survival Action - N.J.S.A. 2A:15-3: The estate has a claim for all damages [Decedent] could have recovered had [he/she] survived, including pain and suffering from the time of injury until death.

X. GOVERNMENT LIABILITY

[If public hospital or government healthcare provider involved:]

The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., governs claims against public entities. Notice of Claim requirements under N.J.S.A. 59:8-8 apply (90 days for claims against the State; 90 days for claims against local public entities). [Confirm compliance with notice requirements.]

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 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 and well-documented.

We are prepared to file suit in the Superior Court of New Jersey, [County] County, and to pursue this matter through trial if necessary. However, we believe early resolution serves everyone's interests.

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

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
New Jersey Attorney ID No. [Number]
Attorney for [Client Name]

ENCLOSURES: [List]

cc: [Client Name]
[File]

NEW JERSEY-SPECIFIC PRACTICE NOTES

Affidavit of Merit Timing:
- Must be served within 60 days of defendant's answer
- Extension of 60 days available for good cause under N.J.S.A. 2A:53A-28
- Failure to provide timely affidavit results in dismissal with prejudice (absent extraordinary circumstances)

Expert Requirements (N.J.S.A. 2A:53A-41):
- Expert must be same specialty/subspecialty as defendant
- Must be board-certified or have equivalent training
- Must be actively practicing or teaching in same specialty

Damages Collateral Source Rule:
- N.J.S.A. 2A:15-97: Evidence of collateral source payments admissible
- Jury may reduce award for collateral source benefits

Punitive Damages (N.J.S.A. 2A:15-5.12):
- Require actual malice or wanton and willful disregard
- Clear and convincing evidence standard
- Cap: Greater of $350,000 or 5x compensatory damages

Prejudgment Interest:
- Available under Rule 4:42-11
- Accrues from date of institution of action or date of injury, whichever is later

Frivolous Litigation (N.J.S.A. 2A:15-59.1):
- Reasonable counsel fees may be awarded against losing party in frivolous claims
- Affirms importance of thorough pre-suit investigation

This template must be customized for the specific facts and circumstances of your case. New Jersey medical malpractice law has specific procedural requirements, particularly the affidavit of merit statute, that must be strictly followed. Always verify current law and consult with experienced New Jersey medical malpractice counsel.