DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF OREGON

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

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 Oregon Revised Statutes governing medical negligence claims.

I. OREGON-SPECIFIC LEGAL FRAMEWORK

A. Governing Law

This claim is governed by Oregon Revised Statutes, including ORS Chapter 31 (Tort Actions) and ORS 12.110 (Limitations on Actions), which establish the standards and procedures for medical malpractice actions in Oregon.

B. Pre-Suit Notice (Oregon Medical Board)

Under ORS 12.110(3), notice to the Oregon Medical Board may be required for claims against licensed physicians. This notice tolls the statute of limitations for 90 days. If required, separate notice has been or will be provided to the Oregon Medical Board.

C. Statute of Limitations and Repose

Statute of Limitations: Under ORS 12.110(4), actions for medical negligence must be commenced within two (2) years from the date the plaintiff discovers, or reasonably should have discovered, the injury and its cause.

Discovery Rule: Oregon applies a discovery rule. The limitations period begins when the plaintiff knew or should have known of the injury and its causal connection to the treatment. Gaston v. Parsons, 318 Or. 247 (1994).

Statute of Repose: ORS 12.110(4) imposes an absolute five (5) year statute of repose from the date of the treatment, omission, or operation upon which the action is based.

Foreign Object Exception: The statute of repose does not apply to claims involving a foreign object unintentionally left in the body. ORS 12.110(4).

Fraud/Concealment Exception: The statute of repose does not apply if the defendant has fraudulently concealed the existence of the cause of action. ORS 12.110(4).

Minors: For minors under the age of eighteen, the action must be commenced within five years of the treatment or by the minor's nineteenth birthday, whichever occurs later. ORS 12.110(4).

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

D. Modified Comparative Fault

Oregon follows modified comparative fault with a 51% bar. Under ORS 31.600, a plaintiff may not recover damages if their fault was greater than the combined fault of all defendants and third persons whose fault contributed to the injury. If the plaintiff's fault 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.

E. Standard of Care Under Oregon Law

Under Oregon law, a healthcare provider must exercise that degree of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar healthcare providers. Creasey v. Hogan, 292 Or. 154 (1981).

National Standard: Oregon generally applies a national standard of care, especially for specialists.

F. Expert Witness Requirements

Under ORS 677.095 and case law, expert testimony is required to establish the standard of care, its breach, and causation in most medical malpractice cases. The expert must:

1. Be qualified by knowledge, skill, experience, training, or education;
2. Have familiarity with the applicable standard of care; and
3. Be able to articulate the standard and how it was breached.

Creasey v. Hogan, 292 Or. 154 (1981).

Exception: Expert testimony may not be required where the negligence is within the common knowledge of laypeople.

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

G. Damage Caps

Under ORS 31.710, Oregon imposes a cap on noneconomic damages in personal injury cases.

Current Cap: The cap is $500,000, adjusted annually for inflation. [Note: Verify current inflation-adjusted amount at time of filing.]

Exceptions: The cap does not apply to claims involving:
- Bodily injury causing death; or
- Permanent and catastrophic injury.

Economic Damages: No cap applies to economic damages.

Note: The constitutionality of Oregon's damage cap has been repeatedly challenged; verify current status at time of filing.

H. Informed Consent

Oregon recognizes informed consent as a basis for medical malpractice liability. A physician must disclose material risks, alternatives, and the nature of the proposed treatment. Arena v. Gingrich, 305 Or. 1 (1988).

The standard is objective: what a reasonable patient would want to know. Arena v. Gingrich, 305 Or. 1 (1988).

I. Vicarious Liability

Hospital Liability: Oregon hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Eads v. Borman, 234 Or. 324 (1963).

Apparent Agency: Oregon recognizes apparent agency liability when patients reasonably believe physicians are hospital employees. Adamski v. Tacoma Gen. Hosp., 20 Wn. App. 98 (1978) (persuasive authority).

J. Loss of Chance Doctrine

Oregon has recognized the loss of chance doctrine in limited circumstances. A plaintiff may recover for the loss of a chance of survival or better outcome, with damages proportional to the lost chance. Joshi v. Providence Health Sys. of Or. Corp., 198 Or. App. 535 (2005).

K. Res Ipsa Loquitur

Oregon 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. Moore v. Willis-Knighton Med. Ctr., 720 So. 2d 632 (1998) (persuasive).

L. Apology Exclusion

Under ORS 677.082, expressions of regret, apology, or sympathy by a healthcare provider are inadmissible as evidence of liability.

M. Government Immunity

Oregon Tort Claims Act: Claims against public hospitals and healthcare providers are subject to the Oregon Tort Claims Act, ORS 30.260 et seq. Damage caps apply ($2.1 million per claimant, $4.3 million per occurrence for governmental tort liability as periodically adjusted).

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 Oregon law. Peeples v. Lampert, 345 Or. 209 (2008).

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 Oregon law, [Defendant Healthcare Provider] was required to exercise that degree of care, skill, and treatment recognized as acceptable and appropriate by reasonably prudent similar healthcare providers.

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] breached the applicable standard of care;
2. These breaches were a direct and 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 Oregon law, the plaintiff must prove that the defendant's negligence was a cause of the injury. Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1 (1987).

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. Pacific 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 have retained qualified expert testimony to support this claim.

We are prepared to litigate this matter through trial in the Circuit Court of [County] County, Oregon 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]
Oregon State Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

OREGON MEDICAL MALPRACTICE PRACTICE NOTES

• Oregon Medical Board Notice: 90-day notice to OMB may be required for claims against licensed physicians, which tolls statute of limitations.

• $500,000 Noneconomic Cap: Adjusted for inflation; exceptions for death and catastrophic injury.

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

• 5-Year Statute of Repose: Longer than many states; exceptions for foreign objects and fraud.

• Loss of Chance: Oregon recognizes loss of chance doctrine in limited circumstances.

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

• No Certificate of Merit: Oregon does not require a certificate of merit at filing.

• Oregon Tort Claims Act: Claims against public entities subject to higher damage caps than many states.

• Venue: Proper venue is the county where the cause of action arose or where defendant resides. ORS 14.080.

• Arbitration: Mandatory arbitration may apply for claims under certain amounts.

This template is specific to Oregon law. Medical malpractice claims in Oregon have specific notice requirements and damage caps. Always verify current law and consult with qualified Oregon medical malpractice counsel.