DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

COMMONWEALTH OF VIRGINIA

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

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 Virginia Code Section 8.01-581.1 et seq.

I. VIRGINIA-SPECIFIC LEGAL FRAMEWORK

A. Governing Law - Virginia Medical Malpractice Act

This claim is governed by the Virginia Medical Malpractice Act, Va. Code Section 8.01-581.1 et seq., which establishes the standards and procedures for medical malpractice actions in Virginia.

B. Statute of Limitations and Repose

Statute of Limitations: Under Va. Code Section 8.01-243(A), actions for medical malpractice must be commenced within two (2) years from the date the cause of action accrued.

Discovery Rule: Virginia applies a discovery rule for cases involving foreign objects. The statute of limitations begins to run when the object is discovered or reasonably should have been discovered. Va. Code Section 8.01-243(C)(1).

Continuing Treatment: The statute may be tolled during continuing treatment by the same provider for the same condition, but only until the patient knew or should have known of the injury. Grubbs v. Rawls, 235 Va. 607 (1988).

Statute of Repose: Va. Code Section 8.01-243(C) imposes an absolute ten (10) year statute of repose from the date of the act or omission complained of.

Minors: For minors under the age of eight, the action must be commenced within two years of the minor's eighth birthday, but in no event more than ten years from the act or omission. Va. Code Section 8.01-243(D).

Incapacity: For persons under a disability, special tolling provisions apply. Va. Code Section 8.01-229.

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

C. Contributory Negligence - CRITICAL

Virginia is one of only four U.S. jurisdictions that still follows the doctrine of pure contributory negligence. Under this doctrine, if the plaintiff is found to have contributed to their injury in any degree whatsoever, they are completely barred from recovery. Litchford v. Hancock, 232 Va. 496 (1987).

Our investigation has determined that our client was in no way negligent or contributorily at fault for the injuries sustained. Our client fully complied with all medical instructions and had no role in causing or contributing to the malpractice.

D. Standard of Care Under Virginia Law

Under Virginia law, a healthcare provider must possess and exercise that degree of skill and diligence exercised by a reasonably prudent practitioner in the same field of practice, or specialty if applicable, in Virginia or similar communities. Bly v. Rhoads, 216 Va. 645 (1976).

Locality Rule: Virginia applies a modified locality rule for general practitioners and a statewide standard for specialists. Henning v. Thomas, 235 Va. 181 (1988).

E. Expert Certification Requirement - CRITICAL

Under Va. Code Section 8.01-20.1, at the time of filing the complaint, the plaintiff's attorney must certify in writing that the attorney has obtained a written opinion from an expert witness that:

1. The defendant deviated from the applicable standard of care; and
2. The deviation was a proximate cause of the injuries claimed.

The expert's written opinion need not be filed but must be retained. Failure to obtain the certification may result in dismissal and sanctions.

Certification: We have obtained a written opinion from an expert witness meeting the requirements of Virginia law who has concluded that the standard of care was breached and that such breach proximately caused our client's injuries.

F. Expert Witness Requirements

Under Va. Code Section 8.01-581.20, expert testimony is required to establish the standard of care and breach. The expert must:

1. Be a healthcare provider;
2. Have an active license to practice in the relevant field;
3. Have been actively engaged in clinical practice or teaching in the same specialty within the year preceding the incident; and
4. Be familiar with the standard of care in the relevant community.

Board Certification: If the defendant is board-certified in a specialty, the expert should have comparable qualifications.

G. Damage Caps - CRITICAL

Virginia imposes a total cap on damages (economic and noneconomic combined) in medical malpractice cases.

Under Va. Code Section 8.01-581.15, the cap is adjusted annually. The current cap as of July 1, 2024 is $2,550,000 (verify the current cap at time of filing).

Cap Schedule:
- The cap increases by $50,000 each year on July 1 through 2031.
- After 2031, the cap remains at $3,000,000.

Note: The cap applies to the total recovery, including both economic and noneconomic damages.

H. Informed Consent

Virginia recognizes informed consent as a basis for medical malpractice liability under Va. Code Section 8.01-581.20:1. A physician must disclose:

1. The risks of the proposed treatment;
2. Alternative treatments and their risks; and
3. The risks of no treatment.

The standard is what a reasonable patient would want to know. Rizzo v. Schiller, 445 S.E.2d 153 (Va. 1994).

I. Vicarious Liability

Hospital Liability: Virginia hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Sentara Norfolk Gen. Hosp. v. Walker, 238 Va. 407 (1989).

Apparent Agency: Virginia recognizes apparent agency liability when patients reasonably believe physicians are hospital employees. Diggs v. Novant Health, Inc., 628 S.E.2d 851 (Va. 2006).

J. Loss of Chance Doctrine

Virginia 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. Hadeed v. Medic-24, Ltd., 237 Va. 277 (1989).

K. Res Ipsa Loquitur

Virginia recognizes res ipsa loquitur in medical malpractice cases where the injury is of a kind that does not ordinarily occur without negligence, the instrumentality was under the defendant's exclusive control, and the plaintiff did not contribute to the injury. Lewis v. Carpenter Co., 252 Va. 296 (1996).

L. Virginia Birth-Related Neurological Injury Compensation Act

For claims involving birth-related neurological injuries, Virginia has a no-fault compensation program under the Virginia Birth-Related Neurological Injury Compensation Act, Va. Code Section 38.2-5000 et seq. This may be the exclusive remedy for certain qualifying injuries.

M. Government Immunity

Virginia Tort Claims Act: Claims against Commonwealth employees acting within scope of employment may be brought under the Virginia Tort Claims Act, Va. Code Section 8.01-195.1 et seq. Sovereign immunity applies with limited waivers and notice requirements.

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 Virginia law. Hosain v. Hosain, 30 Va. Cir. 68 (1993).

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 Virginia law, [Defendant Healthcare Provider] was required to possess and exercise that degree of skill and diligence exercised by a reasonably prudent practitioner in the same field of practice in Virginia.

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 requirements of Va. Code Section 8.01-581.20. [Dr./Expert Name] has concluded, to a reasonable degree of medical probability, that:

1. [Defendant Provider] deviated from the applicable standard of care;
2. This deviation was a 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 Virginia law, the plaintiff must prove that the defendant's negligence was a proximate cause of the injury. Blondel v. Hays, 241 Va. 467 (1991).

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)
• Inconvenience

E. Summary of Damages

Note: Virginia's damage cap of $[Current Cap Amount] applies to the total recovery in this matter.

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. Excess/umbrella coverage information
5. 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. Virginia's contributory negligence doctrine does not apply because our client had no role in causing or contributing to the malpractice.

We have complied with the expert certification requirements of Va. Code Section 8.01-20.1 and are prepared to litigate this matter through trial in the Circuit Court of [City/County], Virginia 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]
Virginia State Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

VIRGINIA MEDICAL MALPRACTICE PRACTICE NOTES

• Contributory Negligence: Virginia is one of only four jurisdictions following pure contributory negligence - ANY plaintiff fault bars recovery entirely.

• Total Damage Cap: Virginia caps total damages (economic + noneconomic) at $2,550,000 (as of July 2024); increases $50,000 annually.

• Expert Certification Required: Written opinion from expert required before filing - retained, not filed.

• Expert Requirements: Expert must have been actively practicing or teaching in same specialty within year preceding incident.

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

• Modified Locality Rule: General practitioners judged by local standard; specialists by statewide standard.

• Birth Injury Fund: Virginia Birth-Related Neurological Injury Compensation Act may be exclusive remedy for certain birth injuries.

• No Loss of Chance: Virginia has not adopted the loss of chance doctrine.

• Venue: Proper venue is the city or county where the cause of action arose or where defendant resides. Va. Code Section 8.01-262.

• Medical Malpractice Review Panel: Voluntary, nonbinding review panels available. Va. Code Section 8.01-581.1.

This template is specific to Virginia law. Medical malpractice claims in Virginia are subject to contributory negligence and a total damage cap. Always verify current law, including the current damage cap, and consult with qualified Virginia medical malpractice counsel.