DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF OHIO

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

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Risk Management / Claims Administrator / Insurance Carrier]
[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 pursuant to Ohio Revised Code Chapter 2305.

I. OHIO-SPECIFIC LEGAL FRAMEWORK

A. Governing Law

This claim is governed by Ohio Revised Code Chapters 2305 and 2323, which establish the standards and procedures for medical malpractice actions in Ohio.

B. Statute of Limitations and Repose

Statute of Limitations: Under Ohio Rev. Code Section 2305.113(A), actions for medical malpractice must be commenced within one (1) year after the cause of action accrued.

Accrual/Discovery Rule: The cause of action accrues upon the later of:
1. The date on which the alleged negligent act or omission occurred; or
2. The date on which the patient discovered or should have discovered the resulting injury.

Frysinger v. Leech, 32 Ohio St. 3d 38 (1987).

Statute of Repose: Ohio Rev. Code Section 2305.113(C) imposes an absolute four (4) year statute of repose from the date of the act or omission. No action may be brought more than four years after the alleged breach.

Foreign Object Exception: The statute of repose does not apply to claims involving a foreign object unintentionally left in the patient's body. Ohio Rev. Code Section 2305.113(C)(2).

Minors: For minors under the age of eighteen, the action must be commenced within one year after the minor reaches age eighteen, but in no event more than four years after the act or omission. Ohio Rev. Code Section 2305.113(D).

Relevant Dates in This Matter:
- Date(s) of negligent care: [Date(s)]
- Date of discovery: [Date]
- One-year limitations period expires: [Date]
- Four-year repose period expires: [Date]

C. Modified Comparative Fault

Ohio follows modified comparative fault with a 51% bar. Under Ohio Rev. Code Section 2315.33, a plaintiff may not recover damages if their negligence was greater than the combined negligence of all defendants. If the plaintiff's negligence is 50% or less, damages are reduced proportionally.

Our investigation has determined that our client was in no way negligent or at fault for the injuries sustained.

D. Standard of Care Under Ohio Law

Under Ohio law, a healthcare provider must exercise that degree of care and skill that would be expected of a reasonably competent healthcare provider in the same specialty, under the same or similar circumstances. Bruni v. Tatsumi, 46 Ohio St. 2d 127 (1976).

Specialist Standard: Specialists are held to the standard of care of reasonably competent specialists in their field. Taylor v. McCullough-Hyde Mem'l Hosp., 116 Ohio App. 3d 595 (1996).

E. Affidavit of Merit Requirement - CRITICAL

Under Ohio Rev. Code Section 2305.113(D), an affidavit of merit is REQUIRED to be filed with the complaint. The affidavit must:

1. Be executed by an expert witness;
2. State that the expert has reviewed the case;
3. State that in the expert's opinion, there was a deviation from the applicable standard of care; and
4. State that the deviation was the proximate cause of the injury.

The affidavit must be from a qualified expert in the same specialty. Failure to file the affidavit of merit may result in dismissal. Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St. 3d 167 (2008).

Certification: We have consulted with a qualified medical expert who has reviewed the relevant medical records and has concluded that the applicable standard of care was breached.

F. Expert Witness Requirements

Under Ohio Rev. Code Section 2743.43 and case law, expert testimony is required to establish the standard of care, its breach, and causation. The expert must:

1. Be licensed to practice medicine;
2. Devote at least one-half of professional time to active clinical practice or teaching;
3. Practice or teach in the same specialty or a related field; and
4. Be familiar with the applicable standard of care.

McCrystal v. O'Mara, 152 Ohio App. 3d 357 (2003).

G. Damage Caps - CRITICAL

Under Ohio Rev. Code Section 2323.43, Ohio imposes caps on noneconomic damages:

General Cap: Noneconomic damages are capped at the greater of:
- $250,000; or
- Three times the economic damages, up to a maximum of $350,000 per plaintiff and $500,000 per occurrence.

Catastrophic Injury Exception: The cap does not apply if the plaintiff has suffered:
- Permanent and substantial physical deformity;
- Loss of use of a limb; or
- Loss of a bodily organ.

Multiple Defendants: The cap is per plaintiff, not per defendant.

[If applicable:] Based on the severity of our client's injuries, this case [may qualify for the catastrophic injury exception/is subject to the general cap].

H. Informed Consent

Ohio recognizes informed consent as a basis for medical malpractice liability under Ohio Rev. Code Section 2317.54. A physician must disclose material risks, alternatives, and the nature of the procedure.

The standard is what a reasonable patient would consider material. Nickell v. Gonzalez, 17 Ohio St. 3d 136 (1985).

I. Vicarious Liability

Hospital Liability: Ohio hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St. 3d 435 (1994).

Apparent Agency: Ohio recognizes apparent agency liability when patients reasonably believe physicians are hospital employees. Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St. 3d 435 (1994).

J. Loss of Chance Doctrine

Ohio has adopted a modified loss of chance doctrine. Under Roberts v. Ohio Permanente Med. Grp., Inc., 76 Ohio St. 3d 483 (1996), a plaintiff may recover for loss of chance if the defendant's negligence reduced the plaintiff's chance of survival or recovery from greater than 50% to less than 50%.

K. Res Ipsa Loquitur

Ohio recognizes res ipsa loquitur in medical malpractice cases where the injury is of a kind that does not ordinarily occur without negligence, the instrumentality was under the defendant's exclusive control, and the plaintiff did not contribute to the injury. Fink v. DeChristopher, 2015-Ohio-2013.

L. Apology Exclusion

Ohio has an apology statute. Under Ohio Rev. Code Section 2317.43, a healthcare provider's statements or conduct expressing sympathy, compassion, commiseration, or condolence are inadmissible as evidence of liability.

M. Sovereign Immunity

Ohio Court of Claims: Claims against state-operated hospitals and state employees acting within scope of employment are brought in the Ohio Court of Claims. Ohio Rev. Code Section 2743.02. Damage caps may apply.

Political Subdivisions: Claims against county and municipal hospitals are subject to the Political Subdivision Tort Liability Act, Ohio Rev. Code Chapter 2744.

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 materials (to the extent discoverable)
• Policies, procedures, and protocols in effect at the time of treatment
• Credentialing files for involved healthcare providers
• Staffing records and schedules
• Equipment maintenance records
• Any recorded statements

Modification, destruction, or concealment of any records will result in claims for spoliation, sanctions, and adverse inference instructions under Ohio law. Smith v. Howard Johnson Co., 67 Ohio St. 3d 28 (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]

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 VIOLATIONS

A. Applicable Standard of Care

Under Ohio law, [Defendant Healthcare Provider] was required to exercise that degree of care and skill that would be expected of a reasonably competent healthcare provider in the same specialty, under the same or similar circumstances.

Based on our expert's analysis, the applicable standard of care required [Defendant] to:

1. [Standard 1]
2. [Standard 2]
3. [Standard 3]

B. Breaches of the Standard of Care

Breach 1: [Detailed description of breach]

Breach 2: [Detailed description of breach]

Breach 3: [Detailed description of breach]

C. Expert Opinion

We have retained [Expert Name, M.D.], a board-certified [Specialty] physician licensed in [State] with [number] years of experience. [Dr./Expert Name] has concluded, to a reasonable degree of medical probability, that:

1. [Defendant Provider] deviated from the applicable standard of care;
2. This deviation was a proximate cause of [Client Name]'s injuries; and
3. Had appropriate care been rendered, [describe avoided outcome].

V. CAUSATION

A. Factual and Proximate Causation

But for the defendant's breach of the standard of care, our client would not have suffered the injuries described herein. Under Ohio law, the plaintiff must prove that the defendant's negligence was a proximate cause of the injury. Stinson v. England, 69 Ohio St. 3d 451 (1994).

VI. 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 current condition and prognosis]

B. Medical Expenses

Past Medical Expenses:

Future Medical Expenses: $[Amount]

C. Lost Earnings

D. Non-Economic Damages

• Physical pain and suffering
• Mental anguish
• Loss of enjoyment of life
• Permanent disability/disfigurement
• Loss of consortium (spouse's claim)
• Emotional distress

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 incurred, we hereby demand:

$[DEMAND AMOUNT]

This demand will remain open for thirty (30) days from the date of this letter, expiring at 5:00 p.m. Eastern Time on [Expiration Date].

VIII. RESPONSE AND ADDITIONAL INFORMATION REQUESTED

Please provide:

1. All professional liability insurance policies applicable to this claim
2. Policy limits for each applicable policy
3. Any self-insured retention amounts
4. Excess/umbrella coverage information
5. Hospital liability coverage (if applicable)

IX. DOCUMENTATION ENCLOSED

• Medical records supporting the claim
• Medical bills and itemized statements
• Employment and wage documentation
• Expert curriculum vitae
• Photographs (if applicable)
• HIPAA authorizations

X. CONCLUSION

This case presents clear medical negligence that caused significant harm to our client. We are prepared to file the required affidavit of merit as required by Ohio Rev. Code Section 2305.113(D) upon filing suit.

We are prepared to litigate this matter through trial in the Court of Common Pleas of [County] County, Ohio if necessary. However, we believe early resolution serves all parties' interests.

Please respond by the deadline stated above.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
Ohio Supreme Court Attorney No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

OHIO MEDICAL MALPRACTICE PRACTICE NOTES

• Short Statute of Limitations: Only 1 year from discovery - one of the shortest in the nation.

• Affidavit of Merit Required: Must file with complaint - failure results in dismissal.

• Damage Caps: $250,000-$500,000 noneconomic damages; catastrophic injury exception applies.

• Modified Comparative Fault: 51% bar - plaintiff cannot recover if more negligent than combined defendants.

• Loss of Chance: Ohio recognizes modified loss of chance when chance drops from above to below 50%.

• Apology Exclusion: Expressions of sympathy inadmissible as evidence of liability.

• Court of Claims: State entity claims must be brought in Ohio Court of Claims.

• Expert Requirements: Expert must devote at least half of professional time to practice or teaching.

• Venue: Proper venue is the county where the cause of action arose or where defendant resides. Ohio Civ. R. 3(B).

• Collateral Source Rule: Modified - court must reduce award by collateral source payments except for insurance the plaintiff paid for. Ohio Rev. Code Section 2323.41.

This template is specific to Ohio law. Medical malpractice claims in Ohio have a very short statute of limitations and strict affidavit requirements. Always verify current law and consult with qualified Ohio medical malpractice counsel.