DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF VERMONT

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

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.

I. VERMONT LEGAL FRAMEWORK

A. Statute of Limitations and Repose

Under 12 V.S.A. Section 521, the statute of limitations for medical malpractice actions is:

General Rule: Three (3) years from the date the cause of action accrues.

Discovery Rule: Under Vermont law, the cause of action accrues when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its cause. Sabia v. State, 164 Vt. 293, 669 A.2d 1187 (1995).

Statute of Repose: No action may be brought more than seven (7) years from the date of the act or omission giving rise to the injury, regardless of when the injury was discovered. 12 V.S.A. Section 521.

Minor Exception: For minors under the age of majority, the statute of limitations is tolled until the minor reaches 18, but is still subject to the 7-year statute of repose.

Foreign Object Exception: The statute of repose does not apply to claims based on the discovery of a foreign object unintentionally left in the body.

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 Requirements

Vermont does not require:
- Pre-suit notice to healthcare providers
- Medical review panel submission

However, Vermont does require a certificate of merit as described below.

C. Certificate of Merit Requirements

Under 12 V.S.A. Section 1042:

1. Certificate of Merit Required: Before filing a medical malpractice complaint, the plaintiff's attorney must file a certificate of merit.

2. Content of Certificate: The certificate must state that the attorney has:
   - Reviewed the claim with a qualified expert
   - Concluded, based on the expert's opinion, that there is a reasonable basis to believe the defendant's conduct fell outside the acceptable professional standard of care and caused the injury

3. Expert Qualifications: The expert must have knowledge of the standard of care applicable to the defendant's specialty.

4. Timing: The certificate must be filed with the complaint.

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

D. Modified Comparative Negligence

Vermont follows modified comparative negligence under 12 V.S.A. Section 1036. 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

Vermont does not impose statutory caps on:
- Economic damages
- Non-economic damages
- Total compensatory damages in medical malpractice cases

Punitive Damages: Vermont allows punitive damages in cases of malice or willful misconduct. There is no statutory cap, but they must be proportionate to the wrongdoing.

F. Standard of Care

Under Vermont law, a healthcare provider must exercise that degree of skill, care, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably competent practitioners in the same field. Largess v. Tatem, 130 Vt. 265, 291 A.2d 398 (1972).

National Standard: Vermont applies a national standard of care. The strict locality rule has been rejected. The standard is based on what is recognized as acceptable by reasonably competent practitioners in the same field, regardless of geographic location.

G. Informed Consent

Vermont recognizes the doctrine of informed consent. A physician has a duty to disclose material risks of a proposed treatment to allow the patient to make an informed decision.

Standard: Vermont applies the "reasonable patient" standard - the physician must disclose information that a reasonable patient would want to know in deciding whether to consent to treatment.

H. Vicarious Liability

Hospital Liability: Vermont 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.

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

Vermont recognizes the doctrine of res ipsa loquitur in appropriate medical malpractice cases. The doctrine applies when:
1. The injury ordinarily would not occur without negligence
2. The defendant had exclusive control of the instrumentality
3. The plaintiff did not contribute to the injury

Treadwell v. Marvil, 130 Vt. 525, 296 A.2d 230 (1972).

J. Loss of Chance Doctrine

Vermont has not explicitly adopted the loss of chance doctrine. Vermont courts have generally applied traditional causation standards requiring proof that the defendant's negligence more probably than not caused the harm. Practitioners should monitor case law developments.

K. Wrongful Death

Wrongful death actions arising from medical malpractice are governed by 14 V.S.A. Sections 1491 et seq. The action must be brought by the personal representative of the decedent's estate.

L. Government Immunity

Vermont Tort Claims Act: Claims against the State of Vermont, including state hospitals, are governed by the Vermont Tort Claims Act, 12 V.S.A. Sections 5601 et seq.

Municipal Immunity: Claims against municipalities and municipal hospitals are governed by 24 V.S.A. Section 901a, which provides limited immunity.

Notice Requirements: For claims against the state, written notice must be provided within three years of the injury. There is no damage cap for claims against the state under the Tort Claims Act.

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: Vermont 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 Vermont law, [Defendant Healthcare Provider] was required to exercise that degree of skill, care, and treatment which is recognized as acceptable and appropriate by reasonably competent practitioners 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, 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

Vermont does not cap non-economic damages:

• 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 [30] 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.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: As noted above

cc: [Client Name]
File

VERMONT PRACTICE NOTES

• Certificate of Merit Required: Must be filed with complaint per 12 V.S.A. Section 1042.
• No Pre-Suit Notice Required: No mandatory notice or panel review.
• 3-Year Statute of Limitations / 7-Year Repose: Discovery rule applies within repose.
• 50% Comparative Fault Bar: Recovery barred if plaintiff 50% or more at fault.
• No Damage Caps: Vermont does not cap compensatory damages.
• National Standard of Care: Vermont applies a national standard.
• Loss of Chance: Not explicitly adopted - monitor case law.
• Foreign Object Exception: Statute of repose does not apply to foreign objects.

This template must be customized for your specific case. Vermont requires a certificate of merit with the complaint. Always verify current law.