DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

COMMONWEALTH OF PENNSYLVANIA

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

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 the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. Section 1303.101 et seq.

I. PENNSYLVANIA-SPECIFIC LEGAL FRAMEWORK

A. Governing Law - MCARE Act

This claim is governed by the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. Section 1303.101 et seq., which establishes the standards and procedures for medical malpractice actions in Pennsylvania.

B. Statute of Limitations and Repose

Statute of Limitations: Under 42 Pa. C.S. Section 5524, actions for medical malpractice must be commenced within two (2) years from the time the action accrues.

Discovery Rule: Pennsylvania applies the discovery rule. The cause of action accrues when the plaintiff knows or reasonably should know of the injury and its cause. Fine v. Checcio, 582 Pa. 253 (2005).

Statute of Repose: Under 42 Pa. C.S. Section 5524(2), an absolute seven (7) year statute of repose applies from the date of the alleged breach. No action may be commenced more than seven years after the act giving rise to the cause of action.

Foreign Object Exception: The statute of repose does not apply to claims involving a foreign object unintentionally left in the body. 42 Pa. C.S. Section 5524(2).

Minors: For minors, the statute of limitations is tolled during minority. The seven-year repose period applies, but an exception exists for minors under the age of eighteen. Waldman v. Rohrbaugh, 426 Pa. Super. 401 (1993).

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

C. Modified Comparative Fault

Pennsylvania follows modified comparative fault with a 51% bar. Under 42 Pa. C.S. Section 7102, a plaintiff may not recover damages if their negligence was greater than the causal negligence of the defendant(s). 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 Pennsylvania Law

Under the MCARE Act, Section 512, a healthcare provider must provide medical services within the recognized standards of acceptable medical practice in the same specialty or, if the provider is providing treatment outside of their specialty, within the standards of the specialty in which the treatment is being provided.

Jones v. Harrisburg Polyclinic Hosp., 496 Pa. 465 (1981).

Specialist Standard: Specialists are held to the standard of care for their specialty. The relevant standard is the recognized standards of acceptable medical practice in the same specialty.

E. Certificate of Merit Requirement - CRITICAL

Under Pa. R.C.P. 1042.3, a certificate of merit is REQUIRED within 60 days of filing the complaint. The certificate must state that:

1. An appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill, or knowledge exercised or exhibited in the treatment fell outside acceptable professional standards; and
2. That such conduct was a cause in bringing about the harm.

Failure to file the certificate of merit within 60 days results in dismissal. Womer v. Hilliker, 589 Pa. 256 (2006).

Certification: We have consulted with an appropriate licensed professional who has provided a written statement supporting this claim.

F. Expert Witness Requirements - CRITICAL

Under MCARE Act Section 512, expert testimony is required to establish the standard of care and breach. The expert must:

1. Be a physician;
2. Have an unrestricted license to practice medicine;
3. Have expertise in the same specialty or subspecialty as the defendant; and
4. If the defendant is board certified, the expert must have the same board certification or have expertise in the same specialty through clinical experience, teaching, or research.

Same Subspecialty Rule: For specialists, the expert must be in the "same specialty" or "same subspecialty." Toogood v. Rogal, 573 Pa. 245 (2003).

G. Damage Caps

Pennsylvania does not impose statutory caps on compensatory damages in medical malpractice cases. The Pennsylvania Supreme Court held that damage caps violate the state constitution. Ferrer v. Trustees of Univ. of Pennsylvania, 573 Pa. 310 (2003).

Punitive Damages: Punitive damages are available upon proof of outrageous conduct and reckless indifference. Pennsylvania allows punitive damages in medical malpractice cases where the defendant's conduct rises to the level of willful misconduct or reckless indifference.

Periodic Payments: For awards exceeding $100,000 for future damages, periodic payments may be ordered. MCARE Act Section 509.

H. Informed Consent

Under MCARE Act Section 504, a physician must obtain informed consent before performing any procedure. The physician must disclose:

1. The nature of the proposed procedure;
2. The risks and alternatives that a reasonable patient would consider material; and
3. The risks of refusing the procedure.

Shinal v. Toms, 162 A.3d 429 (Pa. 2017) (establishing that the physician, not a physician's assistant, must obtain informed consent).

I. Vicarious Liability

Hospital Liability: Pennsylvania hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Thompson v. Nason Hosp., 527 Pa. 330 (1991).

Corporate Negligence: Pennsylvania recognizes corporate negligence liability for hospitals, holding them directly liable for failing to ensure patient safety. Thompson v. Nason Hosp., 527 Pa. 330 (1991).

Ostensible Agency: Pennsylvania recognizes ostensible agency liability when patients reasonably believe physicians are hospital employees. Capan v. Divine Providence Hosp., 287 Pa. Super. 364 (1981).

J. Loss of Chance Doctrine

Pennsylvania has not adopted the loss of chance doctrine. Traditional causation principles apply, requiring proof that the defendant's negligence more likely than not caused the harm. Hamil v. Bashline, 481 Pa. 256 (1978) (addressed increased risk of harm but not pure loss of chance).

K. Res Ipsa Loquitur

Pennsylvania recognizes res ipsa loquitur in medical malpractice cases. Under this doctrine, negligence may be inferred where the injury is of a kind that ordinarily does not occur without negligence, the instrumentality was under the defendant's exclusive control, and the injury was not due to any action of the plaintiff. Jones v. Harrisburg Polyclinic Hosp., 496 Pa. 465 (1981).

L. Apology Exclusion

Under 35 P.S. Section 10228.3, a healthcare provider's expressions of benevolence, regret, or sympathy relating to pain, suffering, or death of a patient are inadmissible as evidence of liability.

M. Government Immunity - CRITICAL

Pennsylvania Sovereign Immunity: Claims against Commonwealth employees (including state hospital employees) acting within scope are brought against the Commonwealth under 42 Pa. C.S. Section 8521. Medical malpractice is a statutory exception to sovereign immunity.

MCARE Fund: Pennsylvania previously had a Joint Underwriting Association (JUA) and Medical Care Availability and Reduction of Error Fund (MCARE Fund) system. Understanding how these interact with particular claims is important.

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 Pennsylvania law. Schroeder v. Com., Dept. of Transp., 551 Pa. 243 (1998).

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 the MCARE Act, [Defendant Healthcare Provider] was required to provide medical services within the recognized standards of acceptable medical practice in the same specialty.

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] who meets the MCARE Act Section 512 requirements. [Dr./Expert Name] has concluded, to a reasonable degree of medical certainty, 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 Pennsylvania law, the plaintiff must prove that the defendant's negligence was a substantial factor in bringing about the harm. Hamil v. Bashline, 481 Pa. 256 (1978).

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. MCARE Fund coverage information (if applicable)
5. Excess/umbrella coverage information
6. 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 certificate of merit within 60 days of filing the complaint as required by Pa. R.C.P. 1042.3.

We are prepared to litigate this matter through trial in the Court of Common Pleas of [County] County, Pennsylvania 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]
Pennsylvania Attorney ID No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

PENNSYLVANIA MEDICAL MALPRACTICE PRACTICE NOTES

• Certificate of Merit Required: Must file within 60 days of filing complaint - failure results in dismissal.

• Strict Expert Requirements: Expert must be in same specialty/subspecialty with same board certification.

• No Damage Caps: Pennsylvania's damage caps were held unconstitutional.

• Shinal v. Toms: Physician (not assistant) must personally obtain informed consent.

• 7-Year Statute of Repose: One of the longer repose periods nationally.

• Corporate Negligence: Pennsylvania recognizes direct hospital liability under Thompson v. Nason.

• Modified Comparative Fault: 51% bar - plaintiff cannot recover if more negligent than defendant(s).

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

• Venue: Medical malpractice actions must be filed in the county where the cause of action arose. Pa. R.C.P. 1006(a.1).

• Philadelphia First Judicial District: Special rules may apply for cases filed in Philadelphia.

This template is specific to Pennsylvania law. Medical malpractice claims in Pennsylvania have strict certificate of merit and expert requirements. Always verify current law and consult with qualified Pennsylvania medical malpractice counsel.