DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF NEW YORK

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

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 YORK-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

Under CPLR 214-a, the statute of limitations for medical malpractice in New York is two years and six months (2.5 years) from the date of the act, omission, or failure complained of, or from the last date of continuous treatment rendered by the party complained of.

Exceptions and Tolling:

1. Continuous Treatment Doctrine: The statute is tolled during a continuous course of treatment for the same illness or condition. Borgia v. City of New York, 12 N.Y.2d 151 (1962); Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291 (1998).

2. Foreign Object Exception: For cases involving foreign objects left in the body, the action may be commenced within one year of discovery or within one year of when the object should reasonably have been discovered, whichever is earlier. CPLR 214-a.

3. Infants: For minors, the statute is tolled but the action must be commenced within 10 years of the malpractice. CPLR 208.

4. Lavern's Law (2018): For cancer misdiagnosis or failure to diagnose, the statute runs from the later of: (a) the date of the act; or (b) 2.5 years from when the plaintiff discovered, or should have discovered, the malpractice. CPLR 214-a(d).

Applicable Dates:
- Date of negligent care: [Date]
- Last date of continuous treatment: [Date]
- Date of discovery (if applicable): [Date]
- Statute of limitations expires: [Date]

B. Certificate of Merit Requirement

CRITICAL COMPLIANCE: Pursuant to CPLR 3012-a, a certificate of merit must be filed with the complaint. The attorney must certify that:

1. They have consulted with at least one licensed physician;
2. The physician reviewed the facts of the case;
3. The physician concluded that there is a reasonable basis for the commencement of the action.

Alternatively, if consultation was not possible within 90 days before filing, counsel may certify that despite reasonable efforts, such consultation could not be obtained, and the certificate will be filed within 90 days after filing the complaint.

We have consulted with a qualified medical expert who has reviewed the relevant medical records and has concluded that there is a reasonable basis to believe that the defendant's care fell below the applicable standard of care.

C. Pure Comparative Negligence

New York follows the doctrine of pure comparative negligence under CPLR 1411. A plaintiff's recovery is reduced by their percentage of fault, but recovery is not barred regardless of the degree of fault. See Arbegast v. Board of Educ., 65 N.Y.2d 161 (1985).

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

D. No Damage Caps

New York does not impose caps on compensatory damages (economic or non-economic) in medical malpractice cases. Attempts to enact caps have been rejected by the legislature.

Punitive Damages: Punitive damages are available in cases of gross negligence, recklessness, or intentional misconduct but are relatively rare in medical malpractice cases.

E. Vicarious Liability

New York recognizes hospital vicarious liability under several doctrines:

1. Respondeat Superior: Hospitals are liable for the negligence of employees (residents, nurses, staff) acting within the scope of employment. Bing v. Thunig, 2 N.Y.2d 656 (1957).

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. Mduba v. Benedictine Hosp., 52 A.D.2d 450 (3d Dep't 1976).

3. Corporate Negligence: Hospitals have an independent duty to properly credential, supervise, and monitor physicians. Darling v. Charleston Community Mem'l Hosp., referenced in NY case law.

F. Informed Consent

Under Public Health Law Section 2805-d, a cause of action for lack of informed consent requires proof that:

1. A reasonably prudent person in the plaintiff's position would not have undergone the treatment if fully informed;
2. The lack of informed consent was a proximate cause of the injury; and
3. The treatment was not an emergency.

New York applies a reasonable patient standard (what a reasonable person would want to know), not a professional standard.

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: New York courts impose sanctions for spoliation of evidence, including adverse inference instructions. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (applying New York law).

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].

IV. STANDARD OF CARE ANALYSIS

A. Applicable Standard of Care

Under New York law, a physician is required to exercise that degree of care and skill possessed by the average qualified practitioner in the specialty, taking into account the advances in the profession. Pike v. Honsinger, 155 N.Y. 201 (1898); Nestorowich v. Ricotta, 97 N.Y.2d 393 (2002).

New York applies a national standard of care for specialists. The strict locality rule has been abandoned. See Caristo v. Sanzone, 96 N.Y.2d 172 (2001).

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 York recognizes the doctrine of res ipsa loquitur in medical malpractice cases where the injury is of a type that does not ordinarily occur in the absence of negligence. Kambat v. St. Francis Hosp., 89 N.Y.2d 489 (1997). The doctrine applies when:

1. The injury would not ordinarily occur without negligence;
2. The instrumentality was within the exclusive control of the defendant;
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 has concluded, to a reasonable degree of medical certainty, that:

1. [Defendant Provider] departed from accepted standards of medical 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 New York law, the plaintiff must prove that the defendant's negligence was a substantial factor in causing the injury. Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308 (1980). This requires proof of both cause-in-fact and proximate cause.

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

Important Note: New York does not recognize the loss of chance doctrine as an independent theory of recovery. Alston v. Wang, 846 N.Y.S.2d 707 (2d Dep't 2007). However, a plaintiff may recover by proving that defendant's negligence diminished the effectiveness of treatment or was a substantial factor in causing the ultimate injury. See Goldberg v. Horowitz, 73 A.D.3d 691 (2d Dep't 2010).

VI. INJURIES AND DAMAGES

A. Physical Injuries

As a direct and proximate result of the defendant's medical malpractice, 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 accepted medical standards, 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

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 - EPTL 5-4.1: The personal representative may recover damages for the pecuniary loss suffered by the distributees, including loss of support, services, and inheritance.

Survival Action - EPTL 11-3.2: The estate may recover damages for conscious pain and suffering from the time of injury until death.

Two-Year Statute of Limitations: Wrongful death actions must be commenced within two years of death. EPTL 5-4.1.

X. CLAIMS AGAINST GOVERNMENTAL ENTITIES

[If New York City Health + Hospitals or other public hospital involved:]

Notice of Claim Requirement: A Notice of Claim must be served upon the public entity within 90 days of the accrual of the claim. General Municipal Law Section 50-e.

One Year and 90 Day Limitations Period: Actions against municipalities must be commenced within one year and 90 days of the event. GML Section 50-i.

[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 malpractice causing significant, life-altering injuries to our client. The departure from accepted medical standards 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 Supreme Court of the State of New York, [County] County, 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]
New York State Bar Registration No. [Number]
Attorney for [Client Name]

ENCLOSURES: [List]

cc: [Client Name]
[File]

NEW YORK-SPECIFIC PRACTICE NOTES

Certificate of Merit (CPLR 3012-a):
- Must be filed with complaint (or within 90 days if consultation not possible pre-filing)
- Expert must be licensed physician
- Statement that expert reviewed facts and concluded reasonable basis exists

Continuous Treatment Doctrine:
- Tolls statute during ongoing treatment for same condition
- Treatment must be continuous, not sporadic
- Ends when relationship terminates or treatment ceases

Lavern's Law (Cancer Cases):
- Applies to cancer and malignant tumor misdiagnosis
- 2.5 years from discovery of malpractice
- Retroactive application issues - verify current case law

Summary Judgment Standard:
- Defendant must make prima facie showing no departure/causation
- Plaintiff must raise triable issues with expert affidavit
- Expert affidavits must be detailed and specific

Collateral Source Rule:
- CPLR 4545: Collateral source payments offset economic damages
- Does not apply to life insurance or gratuitous benefits
- Past collateral source payments deducted from award

Periodic Payment of Judgments:
- CPLR Article 50-A: Future damages over $250,000 may be paid periodically
- Applies to future medical expenses and lost earnings
- Important for structured settlement negotiations

Venue:
- Proper in county where cause of action arose or defendant resides
- Hospital location or where treatment occurred typically proper

Pre-Trial Proceedings:
- Mandatory settlement conference before trial
- Consider early mediation

This template must be customized for the specific facts and circumstances of your case. New York medical malpractice law requires strict compliance with procedural requirements, including the certificate of merit and applicable statutes of limitation. Always verify current law and consult with experienced New York medical malpractice counsel.