DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF WEST VIRGINIA

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, West Virginia ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of West 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 - PRE-SUIT NOTICE PURSUANT TO W. VA. CODE SECTION 55-7B-6 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 30-day pre-suit notice required by W. Va. Code Section 55-7B-6 and our demand for settlement pursuant to the West Virginia Medical Professional Liability Act.

I. WEST VIRGINIA-SPECIFIC LEGAL FRAMEWORK

A. Governing Law - West Virginia Medical Professional Liability Act

This claim is governed by the West Virginia Medical Professional Liability Act (MPLA), W. Va. Code Section 55-7B-1 et seq., which establishes the exclusive standards and procedures for medical malpractice actions in West Virginia.

B. Pre-Suit Notice Requirement - CRITICAL

Under W. Va. Code Section 55-7B-6(b), a claimant MUST provide written notice of intent to file suit at least 30 days before filing. The notice must be sent to each prospective defendant by certified mail, return receipt requested.

THIS LETTER CONSTITUTES SUCH NOTICE. The 30-day notice period will expire on [Date 30 days from this letter].

C. Statute of Limitations and Repose

Statute of Limitations: Under W. Va. Code Section 55-7B-4, actions for medical malpractice must be commenced within two (2) years of the date of injury or within two years of when the injury was discovered or reasonably should have been discovered, whichever last occurs.

Discovery Rule: West Virginia applies a discovery rule. The limitations period begins when the plaintiff knew or should have known of the injury. Gaither v. City Hosp., Inc., 199 W. Va. 706 (1997).

Statute of Repose: W. Va. Code Section 55-7B-4 imposes an absolute ten (10) year statute of repose from the date of the injury. No action may be brought more than ten years after the date of injury regardless of when discovered.

Foreign Object Exception: The statute of repose does not apply to claims involving a foreign object unintentionally left in the body. W. Va. Code Section 55-7B-4.

Minors: For minors under the age of ten, the action must be commenced within two years of the minor's tenth birthday. W. Va. Code Section 55-7B-4.

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]

D. Modified Comparative Fault

West Virginia follows modified comparative fault with a 50% bar. Under W. Va. Code Section 55-7-13a, a plaintiff may not recover damages if their fault was equal to or greater than the combined fault of all other parties. If the plaintiff's fault is less than 50%, damages are reduced proportionally.

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

E. Standard of Care Under West Virginia Law

Under W. Va. Code Section 55-7B-3, a healthcare provider is liable for injury if the provider fails to exercise that degree of care, skill, and learning required or expected of a reasonable, prudent healthcare provider in the profession or class to which the provider belongs, acting in the same or similar circumstances.

Farley v. Shook, 218 W. Va. 680 (2005).

F. Screening Certificate of Merit Requirement - CRITICAL

Under W. Va. Code Section 55-7B-6(b), a screening certificate of merit must be filed with the complaint. The certificate must:

1. Be executed by a healthcare provider qualified as an expert under W. Va. Code Section 55-7B-7;
2. State that the expert has reviewed the facts of the case;
3. State that the expert believes the defendant failed to meet the applicable standard of care; and
4. State that such failure caused the plaintiff's injury.

Failure to file the screening certificate of merit results in dismissal with prejudice. Hinchman v. Gillette, 217 W. Va. 387 (2005).

Certification: We have obtained a screening certificate of merit from a qualified healthcare provider who has reviewed the facts and concluded that the standard of care was breached.

G. Expert Witness Requirements

Under W. Va. Code Section 55-7B-7, expert testimony is required to establish the standard of care, its breach, and causation. The expert must:

1. Be a healthcare provider who is licensed, certified, or registered in the same field;
2. Have actively practiced in the same or a substantially similar specialty within three years of the incident; and
3. Have knowledge of the applicable standard of care.

H. Damage Caps - CRITICAL

Under W. Va. Code Section 55-7B-8, West Virginia imposes caps on noneconomic damages:

General Cap: $250,000 in noneconomic damages.

Catastrophic Injury Exception: The cap increases to $500,000 if the injury results in:
- Wrongful death;
- Permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ; or
- Permanent physical or mental functional impairment that permanently prevents performance of any gainful employment.

Economic Damages: No cap applies to economic damages.

Punitive Damages: Punitive damages are capped at the greater of four times compensatory damages or $500,000. W. Va. Code Section 55-7-29.

I. Informed Consent

Under W. Va. Code Section 55-7B-3(b), a healthcare provider may be liable for failure to obtain informed consent. The provider must disclose:

1. The nature of the procedure;
2. Material risks and alternatives; and
3. The risks of no treatment.

The standard is what a reasonable patient would consider material. Cross v. Trapp, 170 W. Va. 459 (1982).

J. Vicarious Liability

Hospital Liability: West Virginia hospitals may be held vicariously liable for the negligence of their employees under respondeat superior. Torrence v. Kusminsky, 185 W. Va. 734 (1991).

Apparent Agency: West Virginia recognizes apparent agency liability when patients reasonably believe physicians are hospital employees.

K. Loss of Chance Doctrine

West Virginia has adopted a modified loss of chance doctrine. Under Thornton v. CAMC, 172 W. Va. 360 (1983), a plaintiff may recover for the loss of a chance of survival, but the plaintiff must prove the initial chance of survival exceeded 50%.

L. Res Ipsa Loquitur

West 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. Foster v. City of Keyser, 202 W. Va. 1 (1997).

M. Government Immunity

Claims against the State of West Virginia are brought before the Court of Claims. W. Va. Code Section 14-2-1 et seq. Special procedural requirements and limitations apply.

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 West Virginia law. Tracy v. Cottrell, 206 W. Va. 363 (1999).

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 W. Va. Code Section 55-7B-3, [Defendant Healthcare Provider] was required to exercise that degree of care, skill, and learning required of a reasonable, 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] who meets the requirements of W. Va. Code Section 55-7B-7. [Dr./Expert Name] has concluded, to a reasonable degree of medical probability, that:

1. [Defendant Provider] failed to meet the applicable standard of care;
2. Such failure 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 West Virginia law, the plaintiff must prove that the defendant's negligence was a proximate cause of the injury. Totten v. Adongay, 175 W. Va. 634 (1985).

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. Eastern Time on [Expiration Date].

Please note: The 30-day pre-suit notice period required by W. Va. Code Section 55-7B-6(b) expires on [Date]. We reserve the right to file suit after that date if settlement is not reached.

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. We have complied with the 30-day pre-suit notice requirement and have obtained the required screening certificate of merit under W. Va. Code Section 55-7B-6.

We are prepared to litigate this matter through trial in the Circuit Court of [County] County, West 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]
West Virginia State Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

WEST VIRGINIA MEDICAL MALPRACTICE PRACTICE NOTES

• 30-Day Pre-Suit Notice Required: Must be sent by certified mail before filing suit.

• Screening Certificate of Merit Required: Must file with complaint; must be from qualified expert stating breach caused injury.

• Noneconomic Damage Caps: $250,000 general; $500,000 for catastrophic injuries.

• Modified Comparative Fault: 50% bar - plaintiff cannot recover if equal to or more at fault than defendants.

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

• MPLA Exclusivity: The MPLA provides the exclusive remedy for medical malpractice claims.

• Expert Requirements: Expert must have actively practiced in same/similar specialty within 3 years of incident.

• Modified Loss of Chance: Requires initial survival chance exceeding 50%.

• Venue: Proper venue is the county where the defendant resides or where the cause of action arose. W. Va. Code Section 56-1-1.

• Court of Claims: Claims against state entities brought before Court of Claims.

This template is specific to West Virginia law. Medical malpractice claims in West Virginia have strict pre-suit notice and screening certificate requirements. Always verify current law and consult with qualified West Virginia medical malpractice counsel.