DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF WASHINGTON

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

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 - PRE-SUIT NOTICE PURSUANT TO RCW 7.70.100 AND 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 the mandatory 90-day pre-suit notice and mediation offer required by RCW 7.70.100 and our demand for settlement pursuant to Washington Revised Code Chapter 7.70.

I. WASHINGTON-SPECIFIC LEGAL FRAMEWORK

A. Governing Law

This claim is governed by Washington Revised Code Chapter 7.70 (Actions for Injuries Resulting from Health Care), which establishes the standards and procedures for medical malpractice actions in Washington.

B. Pre-Suit Notice and Mediation Offer - CRITICAL

Under RCW 7.70.100, before filing suit, a claimant MUST:

1. Provide written notice of intent to commence an action at least 90 days before filing;
2. The notice must include an offer to participate in mediation;
3. If the defendant accepts mediation, the parties have 45 days to complete mediation; and
4. The statute of limitations is tolled during the 90-day period.

THIS LETTER CONSTITUTES SUCH NOTICE AND INCLUDES AN OFFER TO MEDIATE. The 90-day notice period will expire on [Date 90 days from this letter].

OFFER TO MEDIATE: Pursuant to RCW 7.70.100, we hereby offer to participate in mediation of this claim prior to filing suit.

C. Statute of Limitations and Repose

Statute of Limitations: Under RCW 4.16.350, actions for medical malpractice must be commenced within the earlier of:
1. Three (3) years from the act or omission; or
2. One (1) year from the date the plaintiff discovered or reasonably should have discovered the injury and its cause.

Discovery Rule: Washington applies a discovery rule. The one-year discovery period does not begin until the plaintiff has actual or constructive knowledge of the injury and its cause. Winbun v. Moore, 143 Wn.2d 206 (2001).

Statute of Repose: RCW 4.16.350 imposes an absolute eight (8) year statute of repose from the date of the act or omission.

Tolling: The statute of limitations is tolled during the 90-day pre-suit notice period. RCW 7.70.100(2).

Minors: For minors under the age of eighteen, the action must be commenced within three years of the minor reaching eighteen, but in no event more than eight years from the act or omission. RCW 4.16.350(3).

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

D. Pure Comparative Fault

Washington follows pure comparative fault. Under RCW 4.22.005, a plaintiff may recover damages even if their negligence exceeds that of the defendant, though damages are reduced by the plaintiff's percentage of fault.

Our investigation has determined that our client was in no way negligent or at fault for the injuries sustained.

E. Standard of Care Under Washington Law

Under RCW 7.70.040, a healthcare provider is liable for injury if:

1. The injury resulted from failure to follow the accepted standard of care;
2. The healthcare provider promised a specific result and failed to attain it; or
3. The injury resulted from failure to obtain informed consent.

Standard of Care: The applicable standard is that degree of care, skill, and learning expected of a reasonably prudent healthcare provider in the same profession or class, acting in the same or similar circumstances. Helling v. Carey, 83 Wn.2d 514 (1974).

F. Certificate of Merit Requirement - CRITICAL

Under RCW 7.70.150, a certificate of merit must be filed with the complaint. The certificate must:

1. Be signed by the attorney;
2. Declare that the attorney has consulted with a qualified expert;
3. State that the expert has provided a written opinion that the claim is meritorious; and
4. Attach the expert's curriculum vitae.

Failure to file the certificate of merit may result in dismissal. Putman v. Wenatchee Valley Med. Ctr., 166 Wn.2d 974 (2009).

Certification: We have consulted with a qualified medical expert who has provided a written opinion that this claim is meritorious.

G. Expert Witness Requirements

Under RCW 7.70.040 and 7.70.050, expert testimony is required to establish the standard of care, its breach, and causation. The expert must:

1. Be a healthcare provider;
2. Have expertise in the relevant field of practice;
3. Be familiar with the applicable standard of care; and
4. Be qualified by training and experience.

H. Damage Caps

Washington does not impose caps on compensatory damages in medical malpractice cases.

Punitive Damages: Washington does not allow punitive damages in most civil cases, including medical malpractice. The remedy is limited to compensatory damages. Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45 (1891).

Collateral Source Rule: Washington follows the traditional collateral source rule. Evidence of payments from collateral sources is generally inadmissible.

I. Informed Consent

Under RCW 7.70.050, a healthcare provider is liable for failure to obtain informed consent. The provider must disclose:

1. The nature and character of the proposed treatment;
2. The anticipated results;
3. The recognized possible alternative forms of treatment; and
4. The recognized serious possible risks, complications, and anticipated benefits of the proposed treatment and alternatives.

The standard is objective: what a reasonable patient would consider material. ZeBarth v. Swedish Hosp. Med. Ctr., 81 Wn.2d 12 (1972).

J. Vicarious Liability

Hospital Liability: Washington hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Pedroza v. Bryant, 101 Wn.2d 226 (1984).

Apparent Agency: Washington recognizes apparent agency liability when patients reasonably believe physicians are hospital employees. Adamski v. Tacoma Gen. Hosp., 20 Wn. App. 98 (1978).

K. Loss of Chance Doctrine

Washington has adopted the loss of chance doctrine. Under Herskovits v. Group Health Coop., 99 Wn.2d 609 (1983), a plaintiff may recover for the loss of a chance of survival or better outcome, even if the chance was less than 50%. Damages are proportional to the lost chance.

L. Res Ipsa Loquitur

Washington 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. Pacheco v. Ames, 149 Wn.2d 431 (2003).

M. Government Immunity

Washington Tort Claims Act: Claims against state and local healthcare providers are subject to RCW 4.96. Claims against the state must be filed within three years, with a 60-day waiting period after claim filing before suit may be commenced.

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 Washington law. Henderson v. Tyrell, 80 Wn. App. 592 (1996).

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 RCW 7.70.040, [Defendant Healthcare Provider] was required to exercise that degree of care, skill, and learning expected of a reasonably prudent healthcare provider in the same profession, 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

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] with [number] years of experience. [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 [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 Washington law, the plaintiff must prove that the defendant's negligence was a proximate cause of the injury. Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460 (1983).

B. Loss of Chance (If Applicable)

[If applicable:] The defendant's negligence substantially reduced our client's chance of [survival/recovery/better outcome], constituting compensable injury under Washington's loss of chance doctrine. Herskovits v. Group Health Coop., 99 Wn.2d 609 (1983).

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)
• Emotional distress

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 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. Pacific Time on [Expiration Date].

Please note: The 90-day pre-suit notice period required by RCW 7.70.100 expires on [Date]. We reserve the right to file suit after that date if settlement or mediation is not completed.

VIII. RESPONSE TO MEDIATION OFFER

Pursuant to RCW 7.70.100, please advise within 30 days whether you accept or reject our offer to mediate. If mediation is accepted, we will work with you to select a mediator and schedule the mediation within 45 days.

IX. 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)

X. DOCUMENTATION ENCLOSED

• Medical records supporting the claim
• Medical bills and itemized statements
• Employment and wage documentation
• Expert curriculum vitae
• Photographs (if applicable)
• HIPAA authorizations

XI. CONCLUSION

This case presents clear medical negligence that caused significant harm to our client. We have complied with the 90-day pre-suit notice and mediation offer requirements of RCW 7.70.100 and are prepared to file the required certificate of merit under RCW 7.70.150.

We are prepared to litigate this matter through trial in the Superior Court of [County] County, Washington if necessary. However, we believe early resolution through settlement or mediation serves all parties' interests.

Please respond by the deadline stated above.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: As noted above

cc: [Client Name]
File

WASHINGTON MEDICAL MALPRACTICE PRACTICE NOTES

• 90-Day Pre-Suit Notice Required: Must include offer to mediate; tolls statute of limitations.

• Certificate of Merit Required: Must file with complaint; must attach expert's CV.

• No Damage Caps: Washington does not cap compensatory damages.

• Pure Comparative Fault: Plaintiff can recover even if more than 50% at fault.

• Loss of Chance Recognized: Herskovits allows recovery for loss of chance of survival or recovery.

• No Punitive Damages: Washington generally does not allow punitive damages.

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

• Three Bases of Liability: Under RCW 7.70.040: (1) failure to follow standard of care; (2) breach of promise of specific result; (3) lack of informed consent.

• Venue: Proper venue is the county where the cause of action arose or where defendant resides. RCW 4.12.020.

• Mediation: Pre-suit mediation offer is required; if accepted, must be completed within 45 days.

This template is specific to Washington law. Medical malpractice claims in Washington have mandatory pre-suit notice and mediation offer requirements. Always verify current law and consult with qualified Washington medical malpractice counsel.