DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF TENNESSEE

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

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.

PRE-SUIT NOTICE PURSUANT TO TENN. CODE ANN. SECTION 29-26-121

This letter constitutes the pre-suit notice required under the Tennessee Health Care Liability Act. Pursuant to Tenn. Code Ann. Section 29-26-121, we hereby provide written notification of the potential claim against your insured/facility at least sixty (60) days before filing suit.

I. TENNESSEE LEGAL FRAMEWORK

A. Statute of Limitations and Repose

Under Tenn. Code Ann. Section 29-26-116, the statute of limitations for medical malpractice (healthcare liability) actions is:

General Rule: One (1) year from the date the injury resulting from the wrongful act or omission occurred, or from the date the injury is discovered or reasonably should have been discovered.

Statute of Repose: In no event shall any action be brought more than three (3) years after the date on which the negligent act or omission occurred, regardless of when the injury was discovered. Penley v. Honda Motor Co., 31 S.W.3d 181 (Tenn. 2000).

Minor Exception: For minors under age 18, the statute of limitations is tolled, but in no event may an action be brought more than one year after the minor reaches the age of majority.

Pre-Suit Notice Effect: The 60-day pre-suit notice period extends the statute of limitations by 120 days from the date notice is given. Tenn. Code Ann. Section 29-26-121(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 Tenn. Code Ann. Section 29-26-121:

1. 60-Day Notice Required: Any person asserting a healthcare liability claim must give written notice of the potential claim to each healthcare provider at least sixty (60) days before filing suit.

2. Contents of Notice: The notice shall include:
   - Full name and date of birth of the patient
   - Name and address of claimant and claimant's attorney
   - Name(s) of healthcare provider(s) to whom notice is being given
   - Statement of the factual basis of the claim
   - Statement of the legal basis of the claim

3. Extension of Limitations: The pre-suit notice extends the applicable statute of limitations by 120 days from the date of notice.

4. Failure to Comply: Failure to provide the required pre-suit notice may result in dismissal of the action.

This letter constitutes such notice. The 60-day pre-suit notice period begins upon your receipt of this letter.

C. Certificate of Good Faith Requirement

Tennessee Code Ann. Section 29-26-122 requires:

1. Certificate of Good Faith: The complaint in a healthcare liability action must be accompanied by a certificate of good faith signed by the plaintiff's attorney (or plaintiff if pro se).

2. Content of Certificate: The certificate must state that the attorney has consulted with one or more experts who have provided a signed written statement that there is a good faith basis to maintain the action.

3. Expert Qualifications: The expert must be licensed in the state or a contiguous bordering state, and must have practiced in the same or similar specialty as the defendant.

We have obtained the required expert consultation and will file the certificate of good faith with the complaint if litigation becomes necessary.

D. Modified Comparative Negligence

Tennessee follows modified comparative negligence under Tenn. Code Ann. Section 29-11-103. 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

Tennessee imposes the following damage caps pursuant to Tenn. Code Ann. Section 29-39-102:

Non-Economic Damages:
- $750,000 cap on non-economic damages
- $1,000,000 cap for catastrophic injuries (spinal cord injury with paralysis, amputation of hands/feet/arms/legs, third-degree burns over 40% or more of body, or wrongful death of a parent with minor child)
- Adjustments based on CPI

Punitive Damages: Capped at two (2) times compensatory damages or $500,000, whichever is greater. Tenn. Code Ann. Section 29-39-104.

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

F. Standard of Care

Under Tennessee 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 competent healthcare providers in the same field. Tenn. Code Ann. Section 29-26-115.

National Standard: Tennessee applies a national standard of care, rejecting the strict locality rule. The standard is based on what is recognized as acceptable and appropriate by reasonably competent healthcare providers. Ware v. Meharry Medical College, 898 S.W.2d 181 (Tenn. 1995).

G. Informed Consent

Tennessee recognizes the doctrine of informed consent under Tenn. Code Ann. Section 29-26-118. The plaintiff must prove:
1. The defendant failed to inform the patient of the material risks
2. The patient would have elected not to have the procedure if adequately informed
3. The undisclosed risk materialized and caused injury

The standard is objective: what a reasonable patient would want to know.

H. Vicarious Liability

Hospital Liability: Tennessee hospitals may be held vicariously liable for the negligence of their employees under the doctrine of respondeat superior. Hospitals may also be held directly liable for negligent credentialing and corporate negligence.

Apparent Agency: A hospital may be liable for the negligence of independent contractor physicians under the doctrine of apparent or ostensible agency if the patient had a reasonable belief that the physician was an agent of the hospital. Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tenn. 1995).

I. Res Ipsa Loquitur

Tennessee recognizes the doctrine of res ipsa loquitur in medical malpractice cases where:
1. The injury is of a kind that ordinarily does not occur without negligence
2. The defendant had exclusive control of the instrumentality causing injury
3. The plaintiff did not contribute to the injury

Seavers v. Methodist Medical Center, 9 S.W.3d 86 (Tenn. 1999).

J. Loss of Chance Doctrine

Tennessee does not recognize the loss of chance doctrine as a separate theory of recovery. The plaintiff must prove that the defendant's negligence more probably than not caused the injury. Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993).

K. Wrongful Death

Wrongful death actions arising from medical malpractice are governed by Tenn. Code Ann. Sections 20-5-106 et seq. The action must be brought within one year of death.

L. Government Immunity

Tennessee Governmental Tort Liability Act: Claims against state and local government entities, including public hospitals, are governed by the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. Sections 29-20-101 et seq.

Notice Requirements: Claims must be filed within one year of the injury. Tenn. Code Ann. Section 29-20-305.

Damage Caps: There is a cap of $300,000 per person and $700,000 per occurrence for claims against local governments. State claims have a cap of $1,000,000 per occurrence. Tenn. Code Ann. Section 29-20-403.

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: Tennessee courts recognize spoliation of evidence as grounds for adverse inference instructions and sanctions. Tatham v. Bridgestone Americas Holding, Inc., 473 S.W.3d 734 (Tenn. 2015).

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 Tennessee law and Tenn. Code Ann. Section 29-26-115, [Defendant Healthcare Provider] was required to exercise that degree of care, skill, and treatment which is recognized as acceptable and appropriate by reasonably competent healthcare providers in the same field.

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 licensed in [State], to review this matter. [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.

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: Tennessee caps non-economic damages at $750,000 (or $1,000,000 for catastrophic injuries) pursuant to Tenn. Code Ann. Section 29-39-102.

• Physical Pain and Suffering
• Emotional Distress
• Loss of Enjoyment of Life
• Disfigurement/Physical Impairment
• Loss of Consortium

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].

This letter initiates the 60-day pre-suit notice period pursuant to Tenn. Code Ann. Section 29-26-121. We expect a substantive response within this period.

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 60-day pre-suit notice period.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: As noted above

cc: [Client Name]
File

TENNESSEE PRACTICE NOTES

• 60-Day Pre-Suit Notice: Required before filing suit per Tenn. Code Ann. Section 29-26-121.
• Certificate of Good Faith: Required with complaint per Tenn. Code Ann. Section 29-26-122.
• 1-Year Statute of Limitations / 3-Year Repose: Very short limitations period.
• 49% Comparative Fault Bar: Recovery barred if plaintiff 50% or more at fault.
• Non-Economic Damage Caps: $750,000 general / $1,000,000 catastrophic.
• Loss of Chance Not Recognized: Must prove traditional causation.
• National Standard of Care: Tennessee applies a national standard.
• Government Claims: GTLA applies to public hospitals with specific caps and notice requirements.

This template must be customized for your specific case. Tennessee healthcare liability claims have strict requirements under the Tennessee Health Care Liability Act. Failure to comply may result in dismissal. Always verify current law.