DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF SOUTH CAROLINA

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

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.

NOTICE OF INTENT TO FILE SUIT PURSUANT TO S.C. CODE ANN. SECTION 15-79-125

This letter serves as Notice of Intent to File Suit as required by the South Carolina Medical Malpractice Act. Pursuant to S.C. Code Ann. Section 15-79-125, we hereby provide written notification of our intent to file a medical malpractice action.

I. SOUTH CAROLINA LEGAL FRAMEWORK

A. Statute of Limitations

Under South Carolina Code Ann. Section 15-3-545(A), the statute of limitations for medical malpractice actions is three (3) years from the date of the treatment, omission, or operation giving rise to the cause of action, or three (3) years from the date the injury resulting therefrom was discovered or reasonably ought to have been discovered.

Statute of Repose: Pursuant to S.C. Code Ann. Section 15-3-545(B), no action may be commenced more than six (6) years from the date of the occurrence of the act giving rise to the cause of action, regardless of when the injury was or should have been discovered.

Minor Tolling: For minors, the statute of limitations is tolled until the minor reaches the age of majority, but in no event may an action be commenced more than nine (9) years from the date of the act. S.C. Code Ann. Section 15-3-545(C).

Based on our analysis:
- Date of negligent care: [Date]
- Date of discovery: [Date]
- Limitations period expires: [Date]
- Statute of repose expires: [Date]

B. Pre-Suit Notice Requirements

Pursuant to S.C. Code Ann. Section 15-79-125:

1. Prior to filing a medical malpractice lawsuit, the plaintiff must serve on each prospective defendant written notice of intent to file suit.
2. The notice must include a statement of the factual basis for the claim, the names of all healthcare providers believed to be liable, and a description of the injuries alleged.
3. The notice must be served at least 90 days before filing suit.
4. The pre-suit notice period tolls the statute of limitations.

This letter constitutes such notice. The 90-day pre-suit notice period begins upon your receipt of this letter.

C. Expert Witness and Affidavit Requirements

South Carolina Code Ann. Section 15-36-100 requires:

1. Affidavit of Expert: The complaint in a medical malpractice action must be accompanied by an affidavit from at least one expert witness who meets the qualifications set forth in S.C. Code Ann. Section 15-36-100(C).

2. Expert Qualifications (S.C. Code Ann. Section 15-36-100(C)): Licensed to practice medicine in any state or Canadian province; board certified or board eligible in the same or similar specialty as the defendant; actively practicing in the same or similar medical specialty during the three years immediately preceding the alleged act.

3. Content of Affidavit: The expert must set forth the applicable standard of care, the manner in which the standard was breached, and how the breach proximately caused the alleged injury.

We have obtained the required expert affidavit and will file it with the complaint if litigation becomes necessary.

D. Modified Comparative Negligence

South Carolina follows modified comparative negligence under S.C. Code Ann. Section 15-38-15. A plaintiff's recovery is reduced by their percentage of fault, and recovery is completely barred if the plaintiff is 50% or more at fault.

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

E. Damage Caps

South Carolina imposes the following damage caps pursuant to S.C. Code Ann. Section 15-32-220:

Non-Economic Damages:
- $350,000 per defendant healthcare provider
- $1,050,000 total aggregate cap (regardless of number of defendants)
- These caps are adjusted annually based on the Consumer Price Index

Punitive Damages: Capped at the greater of three (3) times compensatory damages or $500,000 per S.C. Code Ann. Section 15-32-530.

No Cap on Economic Damages: There is no cap on economic damages (medical expenses, lost wages, etc.)

F. Standard of Care

Under South Carolina law, a healthcare provider is required to exercise that degree of care and skill which is ordinarily employed by the medical profession generally under similar conditions and in like surrounding circumstances. Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978).

National Standard: South Carolina has abandoned the strict "locality rule" and applies a national standard of care. King v. Williams, 276 S.C. 478, 279 S.E.2d 618 (1981).

G. Informed Consent

South Carolina recognizes the doctrine of informed consent. A physician has a duty to disclose material risks of a proposed procedure to the patient. Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690 (Ct. App. 1984).

H. Vicarious Liability

Hospital Liability: South Carolina hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Hospitals may also be held directly liable for negligent credentialing and corporate negligence. Simmons v. Tuomey Regional Medical Center, 341 S.C. 32, 533 S.E.2d 312 (2000).

Apparent Agency: Hospitals may be liable for the acts of independent contractor physicians under apparent agency. Simmons v. Tuomey Regional Medical Center, 341 S.C. 32, 533 S.E.2d 312 (2000).

I. Res Ipsa Loquitur

South Carolina recognizes res ipsa loquitur in medical malpractice cases. Edwards v. Fidelity & Casualty Co., 260 S.C. 141, 194 S.E.2d 702 (1973).

J. Loss of Chance Doctrine

South Carolina recognizes the "loss of chance" doctrine. Jones v. Owings, 318 S.C. 72, 456 S.E.2d 444 (Ct. App. 1995).

K. Wrongful Death

Wrongful death actions are governed by S.C. Code Ann. Sections 15-51-10 et seq.

L. Government Immunity

South Carolina Tort Claims Act: Claims against governmental entities are governed by S.C. Code Ann. Sections 15-78-10 et seq. There is a cap of $300,000 per person and $600,000 per occurrence. S.C. Code Ann. Section 15-78-120(a)(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
• Consultation notes and informed consent documents
• Incident/occurrence reports
• Policies, procedures, and protocols in effect at the time of treatment
• Credentialing files and staffing records
• Equipment maintenance and calibration records
• Insurance policies and communications with insurers

Spoliation Warning: South Carolina courts have inherent authority to sanction parties for spoliation of evidence. Kershaw County Bd. of Educ. v. U.S. Gypsum Co., 302 S.C. 390, 396 S.E.2d 369 (1990).

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)

[Defendant Healthcare Provider] committed the following acts of negligence:

• Misdiagnosis / Failure to Diagnose: [Description]
• Surgical Error: [Description]
• Medication Error: [Description]
• Failure to Treat: [Description]
• Delayed Treatment: [Description]

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 South Carolina law, [Defendant Healthcare Provider] was required to exercise that degree of care and skill which is ordinarily employed by the medical profession generally under similar conditions and in like surrounding 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

[Defendant Healthcare Provider] breached the applicable standard of care in the following ways:

Breach 1: [Detailed description]

Breach 2: [Detailed description]

C. Expert Opinion Summary

We have retained [Expert Name, M.D.], a board-certified [Specialty] physician who meets the qualifications set forth in S.C. Code Ann. Section 15-36-100(C). [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 [describe injuries];
3. Had appropriate care been rendered, [describe what would have happened].

V. CAUSATION

A. Factual Causation

But for the defendant's breach of the standard of care, our client would not have suffered the injuries described herein.

B. Proximate Causation

The injuries sustained by our client were foreseeable consequences of the defendant's negligence.

C. Loss of Chance

[If applicable:] The defendant's negligence substantially reduced our client's chance of a better outcome from [percentage]% to [percentage]%.

VI. INJURIES AND DAMAGES

A. Physical Injuries Caused by Malpractice

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: $[Amount]

C. Lost Earnings and Earning Capacity

D. Non-Economic Damages

Note: South Carolina caps non-economic damages at $350,000 per defendant and $1,050,000 total.

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, we hereby demand:

$[DEMAND AMOUNT]

Time for Response

This demand will remain open for [60] days from the date of this letter, through and including [Expiration Date].

VIII. INSURANCE AND INDEMNIFICATION

We demand disclosure of all professional liability insurance policies applicable to this claim, policy limits, hospital/institutional liability coverage, and self-insured retention amounts.

IX. DOCUMENTATION ENCLOSED

• Medical records (relevant portions)
• Medical bills and itemized statements
• Employment and wage records
• Photographs documenting injuries/condition
• HIPAA authorizations

X. CONCLUSION

This case involves clear medical negligence. We urge you to give this matter serious attention and respond promptly within the 90-day pre-suit notice period.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
South Carolina Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

SOUTH CAROLINA PRACTICE NOTES

• 90-Day Pre-Suit Notice: Required before filing suit per S.C. Code Ann. Section 15-79-125.
• Expert Affidavit Required: Must be filed with complaint per S.C. Code Ann. Section 15-36-100.
• 50% Comparative Fault Bar: Recovery barred if plaintiff 50% or more at fault.
• Non-Economic Damage Caps: $350,000 per defendant / $1.05M total (adjusted annually).
• 6-Year Statute of Repose: Absolute bar regardless of discovery.
• National Standard of Care: South Carolina applies a national standard.
• Loss of Chance Recognized: May recover for reduced chance of better outcome.
• Government Claims: Tort Claims Act applies to public hospitals with $300,000/$600,000 caps.

This template must be customized for your specific case. Always verify current law.