DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF NEVADA

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

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. NEVADA-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations and Repose

Under Nevada Revised Statutes Section 41A.097, the statute of limitations for medical malpractice claims is:

Three (3) years from the date of injury, OR one (1) year from the date the injury was discovered or through reasonable diligence should have been discovered, whichever occurs first.

Statute of Repose: No action may be commenced more than four (4) years from the date of the act or omission, regardless of when the injury was discovered. Nev. Rev. Stat. Section 41A.097(2).

Exceptions to Statute of Repose:
- Insurance fraud or intentional concealment by the provider extends the repose period by 2 years
- Foreign objects left in the body are exempt from the statute of repose

Discovery Rule: The discovery rule applies in Nevada. The statute begins when the plaintiff discovers or should have discovered: (1) the injury; (2) the cause of the injury; and (3) that the injury may have been caused by professional negligence. Massey v. Litton, 669 P.2d 248 (Nev. 1983).

Minor Tolling: For minors under age 10 at the time of the malpractice, the statute of limitations does not begin to run until the child reaches age 10.

B. Modified Comparative Negligence

Nevada follows a modified comparative negligence standard under Nev. Rev. Stat. Section 41.141. A plaintiff may recover damages reduced by their percentage of fault, but if the plaintiff's fault is 50% or greater than the combined fault of all defendants, 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. Affidavit of Merit Requirement - CRITICAL

CRITICAL NEVADA REQUIREMENT: Under Nev. Rev. Stat. Section 41A.071, a medical malpractice complaint must be accompanied by an Affidavit of Merit supporting the allegations.

The affidavit must:
1. Be signed by a medical expert who practices or has practiced in an area that is relevant to the claim or has expertise in an area of medicine that is relevant to the claim;
2. Set forth specifically the acts alleged to be negligent;
3. Identify the standard of care allegedly violated;
4. Set forth the facts upon which the expert bases the opinion that the standard was violated.

Failure to file a proper affidavit results in mandatory dismissal without prejudice. Nev. Rev. Stat. Section 41A.071.

We have obtained an affidavit of merit supporting this claim.

D. Damage Caps

Nevada imposes a cap on non-economic damages under Nev. Rev. Stat. Section 41A.035:

Cap: $350,000 for non-economic damages

This cap applies regardless of the number of plaintiffs, defendants, or theories of liability.

Economic damages are not capped.

Note: The Nevada Supreme Court upheld this cap against constitutional challenges. Tam v. Eighth Judicial District Court, 358 P.3d 234 (Nev. 2015).

E. Punitive Damages

Punitive damages are available in Nevada upon proof of oppression, fraud, or malice by clear and convincing evidence. Nev. Rev. Stat. Section 42.005.

Punitive Damage Caps:
- Three times compensatory damages if compensatory damages are $100,000 or more
- $300,000 if compensatory damages are less than $100,000

Nev. Rev. Stat. Section 42.005(1).

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

Nevada courts recognize claims for spoliation of evidence. Bass-Davis v. Davis, 122 Nev. 442 (2006). Destruction or alteration of evidence may result in adverse inference instructions, sanctions, and independent tort liability.

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. Nevada Standard of Care

Under Nevada law, a healthcare provider must exercise "the reasonable care, skill, and knowledge ordinarily possessed and exercised by members of that profession in good standing." Szymborski v. Spring Mountain Treatment Ctr., 133 Nev. 638 (2017).

National Standard: Nevada applies a national standard of care rather than a locality rule. The standard is based on the care expected of reasonably competent practitioners nationwide in the same specialty.

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 Certification

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.

This expert is qualified under Nev. Rev. Stat. Section 41A.071 to provide the required affidavit.

V. CAUSATION

A. Causation Standard in Nevada

Under Nevada 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 (but for causation) and a legal cause (the injury was a foreseeable consequence) of the harm. Gunlock v. New Frontier Hotel, 370 P.2d 682 (Nev. 1962).

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

B. Loss of Chance Doctrine

Nevada recognizes the loss of chance doctrine in medical malpractice cases. In Perez v. Las Vegas Med. Ctr., 805 P.2d 589 (Nev. 1991), the Nevada Supreme Court recognized that a patient may recover for the loss of a substantial chance of recovery or survival when a healthcare provider's negligence reduces that chance.

Proportional Recovery: Damages are calculated based on the degree to which the chance was reduced. 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 Nevada 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. Woosley v. State Farm Ins. Co., 117 Nev. 182 (2001).

VI. VICARIOUS LIABILITY AND HOSPITAL LIABILITY

A. Respondeat Superior

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

B. Apparent Agency / Ostensible Agency

Nevada recognizes the doctrine of apparent agency for hospital liability. A hospital may be held liable for the negligence of independent contractor physicians if: (1) the hospital held out the physician as its employee or agent; (2) the patient reasonably relied on that representation. Schlotfeldt v. Charter Hosp. of Las Vegas, 910 P.2d 271 (Nev. 1996).

C. Corporate Negligence

Nevada 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

Humboldt Gen. Hosp. v. Sixth Judicial Dist. Ct., 132 Nev. 544 (2016).

D. Government Immunity

Claims against state governmental entities are governed by Nev. Rev. Stat. Chapter 41.

Waiver of Immunity: Nevada has generally waived sovereign immunity for negligence claims against the state and its political subdivisions. Nev. Rev. Stat. Section 41.031.

Damage Cap for Government Claims: $100,000 per claimant (exclusive of interest and costs). Nev. Rev. Stat. Section 41.035(1).

Notice Requirements: Claims against governmental entities must be filed within two (2) years of the accrual of the cause of action.

VII. INFORMED CONSENT

A. Nevada Informed Consent Standard

Nevada 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. Bronneke v. Rutherford, 89 Nev. 394 (1973).

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 Nev. Rev. Stat. Section 41.085. The action may be brought by the personal representative of the estate or the heirs.

Recoverable Damages:
- Medical and funeral expenses
- Loss of income and probable accumulations
- Grief, sorrow, and loss of probable comfort and society
- Pain and suffering of the decedent before death

The wrongful death statute of limitations is two (2) years from the date of death. Nev. Rev. Stat. Section 11.190(4)(e).

IX. DAMAGES

A. Medical Expenses

Past Medical Expenses:

Future Medical Expenses: $[Amount]

B. Lost Earnings

C. Non-Economic Damages

Subject to Nevada's statutory cap of $350,000

• 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
• Affidavit of merit (to be filed with complaint per Nev. Rev. Stat. Section 41A.071)
• 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]
Nevada Bar Number: [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

NEVADA-SPECIFIC PRACTICE NOTES

Affidavit of Merit: Must be filed with the complaint. The affidavit must identify specific acts of negligence, the standard of care, and the facts supporting the expert's opinion. Failure to file results in dismissal without prejudice.

$350,000 Non-Economic Cap: This is one of the lower caps in the nation. The cap was upheld in Tam v. Eighth Judicial District Court (2015).

Loss of Chance: Nevada recognizes loss of chance with proportional recovery, which is helpful in delayed diagnosis cases.

4-Year Statute of Repose: Be aware of the relatively short repose period. Plan filing strategy accordingly.

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

Government Claims: Remember the $100,000 cap for claims against governmental entities and the two-year notice period.

Expert Qualifications: The affiant must practice or have practiced in an area relevant to the claim. Match the expert's specialty to the defendant's specialty.

This template must be customized for the specific facts of your case. Nevada's affidavit of merit requirements must be strictly followed. Consult with experienced Nevada medical malpractice counsel.