DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF TEXAS

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

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 TEX. CIV. PRAC. & REM. CODE SECTION 74.051

This letter constitutes the pre-suit notice required under the Texas Medical Liability Act (Chapter 74). Pursuant to Tex. Civ. Prac. & Rem. Code Section 74.051, we hereby provide written notice of our client's healthcare liability claim at least sixty (60) days before filing suit.

I. TEXAS LEGAL FRAMEWORK

A. Statute of Limitations and Repose

Under Tex. Civ. Prac. & Rem. Code Section 74.251, the statute of limitations for healthcare liability claims is:

General Rule: Two (2) years from the occurrence of the breach or tort, or from the last date of the relevant course of treatment or hospitalization.

Statute of Repose: No healthcare liability claim may be commenced more than ten (10) years after the date of the act or omission that gives rise to the claim. Tex. Civ. Prac. & Rem. Code Section 74.251(b).

Discovery Rule: Texas courts have recognized the discovery rule under the open courts provision of the Texas Constitution, but it is subject to the 10-year statute of repose. Shah v. Moss, 67 S.W.3d 836 (Tex. 2001).

Minor Exception: For minors under 12 years of age, the statute of limitations is tolled until the child reaches age 12, and then the child has until age 14 to file suit. Tex. Civ. Prac. & Rem. Code Section 74.251(a).

Pre-Suit Notice Effect: The 60-day pre-suit notice period tolls the applicable statute of limitations for 75 days. Tex. Civ. Prac. & Rem. Code Section 74.051(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 Tex. Civ. Prac. & Rem. Code Section 74.051:

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

2. Contents of Notice: Notice must include:
   - A brief description of the patient's medical or health care condition
   - A brief description of the basis of the claim
   - Request for copies of medical records

3. Authorization for Release: An authorization for release of protected health information must accompany the notice.

4. Tolling Effect: The statute of limitations is tolled for 75 days from the date notice is given.

5. Failure to Comply: Failure to provide the required pre-suit notice may result in abatement of the lawsuit.

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

C. Expert Report Requirements

Texas Civil Practice & Remedies Code Section 74.351 requires:

1. Expert Report: Within 120 days after filing suit, the claimant must serve on each defendant an expert report.

2. Contents of Expert Report: The report must provide:
   - A fair summary of the expert's opinions regarding applicable standard of care
   - How the standard was breached
   - The causal relationship between the breach and the injury

3. Expert Qualifications (Tex. Civ. Prac. & Rem. Code Section 74.401-74.403):
   - Practicing medicine at the time testimony is given or at the time of the alleged act
   - Knowledge of accepted standards of care for the diagnosis, care, or treatment
   - Board certified in the same specialty or has other substantial training or experience
   - Actively practicing the specialty in the past year

4. Failure to Serve Report: Failure to timely serve the expert report results in dismissal with prejudice and payment of defendant's attorney fees.

We have retained a qualified expert and will serve the required expert report within 120 days of filing suit if litigation becomes necessary.

D. Modified Comparative Negligence

Texas follows modified comparative negligence under Tex. Civ. Prac. & Rem. Code Section 33.001. A plaintiff's recovery is reduced by their percentage of fault, and recovery is completely barred if the plaintiff is 51% or more at fault.

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

E. Damage Caps

Texas imposes strict damage caps pursuant to Tex. Civ. Prac. & Rem. Code Section 74.301-74.303:

Non-Economic Damages:
- $250,000 per claimant against physicians and healthcare providers
- $250,000 per claimant against a single healthcare institution
- $500,000 maximum per claimant against all healthcare institutions
- Total cap of $250,000 + $500,000 = $750,000 maximum for non-economic damages per claimant

Adjustment for Inflation: The caps are adjusted every six years based on CPI.

Punitive Damages: Capped at the greater of two (2) times economic damages plus non-economic damages up to $750,000, or $200,000. Tex. Civ. Prac. & Rem. Code Section 41.008.

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

F. Standard of Care

Under Texas law and Tex. Civ. Prac. & Rem. Code Section 74.351, a healthcare provider must exercise that degree of care that a reasonably prudent healthcare provider in the same or similar circumstances would have exercised.

National Standard: Texas applies a national standard of care. The locality rule has been rejected. Denton Regional Medical Center v. LaCroix, 947 S.W.2d 941 (Tex. App. 1997).

G. Informed Consent

Texas recognizes the doctrine of informed consent under Tex. Civ. Prac. & Rem. Code Section 74.101-74.106. A physician has a duty to disclose the risks and hazards of the proposed treatment or procedure.

Texas Medical Disclosure Panel: Texas has a Medical Disclosure Panel that establishes which procedures require disclosure and what risks must be disclosed. Compliance with panel lists creates a rebuttable presumption of disclosure (List A) or non-disclosure (List B).

H. Vicarious Liability

Hospital Liability: Texas 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, negligent supervision, and corporate negligence. Baptist Memorial Hospital System v. Sampson, 969 S.W.2d 945 (Tex. 1998).

Apparent Agency: A hospital may be liable for the negligence of independent contractor physicians under apparent agency. Sampson, 969 S.W.2d 945.

I. Res Ipsa Loquitur

Texas recognizes the doctrine of res ipsa loquitur in limited medical malpractice cases, primarily involving foreign objects left in the body or injury to unrelated body parts during surgery. Haddock v. Arnspiger, 793 S.W.2d 948 (Tex. 1990).

J. Loss of Chance Doctrine

Texas does not recognize the loss of chance doctrine as a separate theory of recovery. The plaintiff must prove that the defendant's negligence was a proximate cause of the injury using traditional standards. Kramer v. Lewisville Memorial Hospital, 858 S.W.2d 397 (Tex. 1993).

K. Wrongful Death

Wrongful death actions arising from medical malpractice are governed by Tex. Civ. Prac. & Rem. Code Sections 71.001 et seq. The cap on non-economic damages applies to wrongful death actions.

L. Government Immunity

Texas Tort Claims Act: Claims against state and local government entities, including public hospitals, are governed by the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Sections 101.001 et seq.

Notice Requirements: Claims must be filed within six (6) months of the injury for claims against governmental entities. Tex. Civ. Prac. & Rem. Code Section 101.101.

Damage Caps: There is a cap of $250,000 per person and $500,000 per occurrence for claims against local governments, and $250,000 per person per claim against the state. Tex. Civ. Prac. & Rem. Code Section 101.023.

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: Texas courts recognize spoliation of evidence as grounds for adverse inference instructions, sanctions, and separate causes of action. Trevino v. Ortega, 969 S.W.2d 950 (Tex. 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)

[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 Texas law, [Defendant Healthcare Provider] was required to exercise that degree of care that a reasonably prudent healthcare provider in the same or similar circumstances would have exercised.

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 Tex. Civ. Prac. & Rem. Code Sections 74.401-74.403. [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 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. Under Texas law, "proximate cause" requires both cause in fact and foreseeability.

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: Texas caps non-economic damages at $250,000 against physicians and up to $500,000 total against healthcare institutions pursuant to Tex. Civ. Prac. & Rem. Code Section 74.301.

• Physical Pain and Suffering
• Mental Anguish
• Loss of Consortium
• Disfigurement
• Physical Impairment

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 Tex. Civ. Prac. & Rem. Code Section 74.051. We expect a substantive response within this period.

VIII. AUTHORIZATION FOR RELEASE

Pursuant to Tex. Civ. Prac. & Rem. Code Section 74.052, enclosed is an authorization for release of protected health information related to [Client Name]'s care and treatment.

Please provide copies of all medical records responsive to this authorization within the time frame set forth in the statute.

IX. 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.

X. DOCUMENTATION ENCLOSED

• Medical records (relevant portions)
• Medical bills and itemized statements
• Employment and wage records
• Photographs documenting injuries/condition
• HIPAA Authorization for Release of Medical Records

XI. 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]
State Bar of Texas No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

TEXAS PRACTICE NOTES

• 60-Day Pre-Suit Notice: Required before filing suit per Tex. Civ. Prac. & Rem. Code Section 74.051.
• Expert Report Due in 120 Days: Must serve expert report within 120 days of filing or face dismissal with prejudice per Tex. Civ. Prac. & Rem. Code Section 74.351.
• 2-Year Statute of Limitations / 10-Year Repose: Limited discovery rule application.
• 51% Comparative Fault Bar: Recovery barred if plaintiff 51% or more at fault.
• Strict Damage Caps: $250,000 per physician / $500,000 total against institutions for non-economic.
• Loss of Chance Not Recognized: Must prove traditional proximate cause.
• National Standard of Care: Texas applies a national standard.
• Medical Disclosure Panel: Informed consent governed by panel lists.
• Government Claims: Texas Tort Claims Act applies with 6-month notice and specific caps.

This template must be customized for your specific case. Texas medical liability claims have strict requirements under Chapter 74. Failure to comply with pre-suit notice and expert report requirements may result in dismissal. Always verify current law.