DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF UTAH

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

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 PRE-LITIGATION PANEL REQUEST PURSUANT TO UTAH CODE ANN. SECTION 78B-3-416

Please be advised that we intend to file a Request for Pre-litigation Panel Review with the Utah Division of Occupational and Professional Licensing as required by the Utah Health Care Malpractice Act.

I. UTAH LEGAL FRAMEWORK

A. Statute of Limitations and Repose

Under Utah Code Ann. Section 78B-3-404, the statute of limitations for medical malpractice actions is:

General Rule: Two (2) years from the date of discovery of the injury, or from the date upon which the injury should have been discovered through reasonable diligence.

Statute of Repose: No action may be brought more than four (4) years after the date of the alleged act, omission, neglect, or occurrence, regardless of when the injury was discovered. Utah Code Ann. Section 78B-3-404(1).

Foreign Object Exception: The statute of repose does not apply to claims based on the presence of a foreign object that has no therapeutic or diagnostic purpose. In such cases, the two-year statute of limitations runs from discovery.

Minor Tolling: For minors under the age of 18, the statute of limitations is tolled until the minor reaches the age of majority, but in no event may an action be brought more than four years after reaching majority.

Pre-Litigation Panel Effect: Filing a request for pre-litigation panel review tolls the statute of limitations until 60 days after the issuance of the panel's opinion.

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

B. Pre-Litigation Panel Requirements

Utah Code Ann. Sections 78B-3-416 et seq. require:

1. Mandatory Pre-Litigation Panel Review: Before commencing a medical malpractice action, the plaintiff must request a pre-litigation hearing panel review.

2. Filing Request: The request must be filed with the Division of Occupational and Professional Licensing (DOPL) and include:
   - All medical records
   - A description of the claim
   - Names of healthcare providers involved

3. Panel Composition: The panel consists of:
   - A panel chair (attorney)
   - A healthcare provider in the same or similar specialty as the defendant
   - A lay panelist

4. Panel Hearing: The panel reviews materials and conducts a hearing within 180 days.

5. Panel Opinion: The panel issues a non-binding opinion on whether there was a breach of the standard of care.

6. Waiver: Parties may waive the panel process by written agreement.

7. Tolling Effect: The statute of limitations is tolled from filing the request until 60 days after the panel issues its opinion.

We intend to file the pre-litigation panel request promptly.

C. Affidavit of Merit Requirements

Utah Code Ann. Section 78B-3-423 requires:

1. Certificate of Compliance: The complaint must include a certificate of compliance stating that the attorney has consulted with and reviewed the claim with a qualified health care provider.

2. Content: The certificate must state that in the health care provider's opinion, there is a reasonable basis to believe that the defendant's conduct fell below the applicable standard of care and caused the alleged injury.

3. Expert Qualifications: The expert must be licensed in the same field as the defendant or have substantial experience and knowledge in the relevant area.

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

D. Modified Comparative Negligence

Utah follows modified comparative negligence under Utah Code Ann. Section 78B-5-818. 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

Utah imposes the following damage cap pursuant to Utah Code Ann. Section 78B-3-410:

Non-Economic Damages:
- $450,000 cap on non-economic damages
- This cap applies regardless of the number of defendants

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

Punitive Damages: Utah law permits punitive damages but they must be proportionate to the harm and defendant's conduct. The plaintiff must prove punitive damage claims by clear and convincing evidence.

F. Standard of Care

Under Utah law, a healthcare provider must exercise that degree of care, skill, and learning expected of a reasonable, prudent healthcare provider in the profession or class to which he or she belongs, acting in the same or similar circumstances. Utah Code Ann. Section 78B-3-403.

National/Similar Circumstances Standard: Utah applies a standard based on "same or similar circumstances," which generally permits consideration of national standards. The strict locality rule has been rejected.

G. Informed Consent

Utah recognizes the doctrine of informed consent. Utah Code Ann. Section 78B-3-406 provides that a health care provider has a duty to disclose information regarding the proposed treatment to allow an informed decision.

Elements: The plaintiff must prove:
1. The healthcare provider failed to disclose material information
2. A reasonable person would not have consented if properly informed
3. The undisclosed risk materialized and caused injury

H. Vicarious Liability

Hospital Liability: Utah 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.

Independent Contractors: Generally, hospitals are not liable for the negligence of independent contractor physicians unless apparent agency applies.

Apparent Agency: A hospital may be liable for the negligence of an independent contractor physician if the patient reasonably believed the physician was an employee or agent of the hospital.

I. Res Ipsa Loquitur

Utah recognizes the doctrine of res ipsa loquitur in appropriate medical malpractice cases, particularly where the injury is of a type that would not ordinarily occur without negligence. Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980).

J. Loss of Chance Doctrine

Utah has not clearly adopted the loss of chance doctrine. Utah courts have analyzed causation under traditional "more probable than not" standards. Practitioners should monitor case law developments.

K. Wrongful Death

Wrongful death actions arising from medical malpractice are governed by Utah Code Ann. Sections 78B-3-105 et seq. The non-economic damage cap applies to wrongful death actions.

L. Government Immunity

Utah Governmental Immunity Act: Claims against state and local government entities, including public hospitals, are governed by the Utah Governmental Immunity Act of Utah, Utah Code Ann. Sections 63G-7-101 et seq.

Notice Requirements: A notice of claim must be filed with the governmental entity within one year of the injury. Utah Code Ann. Section 63G-7-402.

Damage Caps: There is a cap of $583,900 per person for personal injury claims against governmental entities (adjusted periodically). Utah Code Ann. Section 63G-7-604.

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: Utah courts recognize spoliation of evidence as grounds for adverse inference instructions and sanctions.

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 Utah law, [Defendant Healthcare Provider] was required to exercise that degree of care, skill, and learning expected of a reasonable, prudent healthcare provider in the profession or class to which he or she belongs, acting in the same or similar 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, 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: Utah caps non-economic damages at $450,000 pursuant to Utah Code Ann. Section 78B-3-410.

• 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].

We intend to file a request for pre-litigation panel review with DOPL if this matter cannot be resolved. We encourage meaningful settlement discussions to avoid the expense and time of formal proceedings.

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.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: As noted above

cc: [Client Name]
File

UTAH PRACTICE NOTES

• Pre-Litigation Panel Required: Mandatory review before filing suit per Utah Code Ann. Section 78B-3-416.
• Certificate of Compliance: Required with complaint per Utah Code Ann. Section 78B-3-423.
• 2-Year Statute of Limitations / 4-Year Repose: Foreign object exception to repose.
• 50% Comparative Fault Bar: Recovery barred if plaintiff 50% or more at fault.
• $450,000 Non-Economic Cap: Applies to all claims regardless of defendants.
• DOPL Filing: Request filed with Division of Occupational and Professional Licensing.
• Panel Opinion Non-Binding: But may be admissible at trial.
• Government Claims: Governmental Immunity Act applies with 1-year notice and specific caps.

This template must be customized for your specific case. Utah medical malpractice claims require pre-litigation panel review. Failure to comply may result in dismissal. Always verify current law.