Alaska Medical Malpractice Notice of Intent to Sue (Voluntary Pre-Suit)

NOTICE OF INTENT TO SUE AND PRE-SUIT SETTLEMENT DEMAND – MEDICAL MALPRACTICE

[FIRM NAME]
Attorneys at Law
[STREET ADDRESS]
[CITY, AK ZIP]
Telephone: [____________________]
Email: [____________________]
Licensed in the State of Alaska

DATE: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AND FIRST-CLASS U.S. MAIL
[and email where address is known]

RE: NOTICE OF INTENT TO SUE — MEDICAL MALPRACTICE
Patient/Claimant: [PATIENT/CLAIMANT FULL NAME], DOB [__/__/____]
Date(s) of Negligent Care: [__/__/____] through [__/__/____]
Healthcare Provider(s): [____________________]
Facility: [____________________]
Date of Discovery: [__/__/____]
Statute of Limitations Expiration: [__/__/____] (calendared by sender)
Claim/File No. (if assigned): [____________________]

Dear Risk Management / Claims Counsel:

This firm represents [PATIENT/CLAIMANT NAME] (and, where applicable, the Estate of [____________________] and the statutory beneficiaries) in connection with the medical care and treatment provided by your insureds and personnel during the period identified above. This letter constitutes a formal Notice of Intent to Sue and pre-suit demand for resolution under Alaska law.

This Notice is provided as a voluntary courtesy and is not required by Alaska statute. Alaska has no statutory pre-suit NOI for medical malpractice; suit may be filed at any time within the limitations period. Nevertheless, we believe pre-suit dialogue can serve the parties' mutual interest in candid evaluation of the claim.

I. ALASKA-SPECIFIC LEGAL FRAMEWORK

A. Governing Authority

This claim arises under Alaska Statutes Title 9, Chapter 55, Article 6 (Medical Malpractice Actions), AS 09.55.530-.560, and related provisions governing civil liability and damages.

B. Statute of Limitations and Repose

☐ Two-Year Limitations Period. A medical malpractice action must be commenced within two (2) years after the cause of action accrues. AS 09.10.070(a); AS 09.55.560.

☐ Discovery Rule. A cause of action accrues when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the existence of all elements essential to the cause of action. Pedersen v. Zielski, 822 P.2d 903 (Alaska 1991).

☐ Tolling for Minors and Incompetents. Under AS 09.10.140, the limitations period is tolled while a person entitled to bring the action is under the age of majority or mentally incompetent, with an extended tolling provision for plaintiffs under age 8.

☐ Statute of Repose. Alaska imposes a 10-year statute of repose under AS 09.10.055, with exceptions for intentional misconduct, gross negligence, fraud, and concealment.

☐ No Tolling by NOI. This Notice does not toll, extend, or otherwise modify the statute of limitations. We have independently calendared all relevant deadlines and intend to file suit within the limitations period if this matter is not resolved.

C. Standard of Care

Alaska applies a statewide standard of care, AS 09.55.547. A health care provider must exercise the degree of knowledge, skill, and care ordinarily exercised under the circumstances by health care providers in the same field or specialty under similar circumstances. AS 09.55.540.

D. Damages Caps — AS 09.55.549

Alaska caps noneconomic damages in medical malpractice actions as follows:

• ☐ Standard Cases: $250,000.
• ☐ Wrongful Death or Severe Permanent Physical Impairment More Than 70% Disabling: $400,000.
• ☐ Reckless or Intentional Misconduct: No cap applies. AS 09.55.549(e).
• ☐ Economic Damages: No cap. Past and future medical, hospital, surgical, rehabilitation, lost-earning, life-care, and household-services losses are fully recoverable.
• ☐ Cap Applies "Notwithstanding AS 09.17.010" — the medical-malpractice-specific cap controls over the general personal-injury cap.

E. Several Liability and Comparative Fault

☐ Pure Several Liability. Each defendant is liable only for that defendant's apportioned share of fault. AS 09.17.080. There is no joint liability for noneconomic damages, and joint liability is not imposed by the apportionment statute even for economic damages.

☐ Pure Comparative Fault. A claimant's recovery is reduced by the claimant's percentage of fault but not barred. AS 09.17.060. Our investigation establishes that the claimant bears no responsibility for the injuries.

F. Punitive Damages

Punitive damages are recoverable upon clear-and-convincing proof of outrageous conduct evincing reckless indifference, or intentional wrongful misconduct, and are capped at the greater of three (3) times compensatory damages or $500,000. AS 09.17.020.

G. Apology Statute — AS 09.55.544

Expressions of apology, sympathy, commiseration, compassion, or benevolence by health care providers are inadmissible in any civil action or arbitration governed by AS 09.55.530-.560. Admissions of liability or negligence remain admissible even where coupled with a protected apology. Counsel will not weaponize protected statements.

H. Court-Appointed Expert Advisory Panel — AS 09.55.536

Once suit is filed, the Court will appoint a three-member expert advisory panel within twenty (20) days after the filing of an answer (unless the Court determines an advisory opinion is unnecessary). The panel report is due thirty (30) days later and is admissible at trial. We are prepared to participate in this process if the matter is not resolved pre-suit.

I. Voluntary Arbitration — AS 09.55.535

We are open to discussing voluntary arbitration of this matter under AS 09.55.535, provided any arbitration agreement satisfies the bold-print, contemporaneous-execution, and non-coercion requirements of subsections (b) and (c). If arbitration is of interest, please advise.

J. Governmental and Tribal Defendants

☐ State Defendants. [If applicable] Claims against the State of Alaska or state agencies are governed by the Alaska State Tort Claims Act, AS 09.50.250-.300. We have separately filed/will file the required claim with the appropriate state authority within the statutory period.

☐ IHS / Tribal-Compact Defendants. [If applicable] Care provided by [Alaska Native Tribal Health Consortium / Southcentral Foundation / Yukon-Kuskokwim Health Corporation / Bristol Bay Area Health Corporation / SEARHC / Tanana Chiefs Conference / Maniilaq Association / Norton Sound Health Corporation / other ISDEAA-compact tribal organization] is the deemed responsibility of the United States under the Federal Tort Claims Act (28 U.S.C. § 2671 et seq.) and the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 5321(d). We have separately filed/will file an SF-95 administrative claim under 28 U.S.C. § 2675 within two (2) years of accrual.

☐ Municipal Defendants. [If applicable] Claims against municipal hospitals or health systems are subject to AS 09.65.070 and any applicable charter notice provisions; we will comply.

II. EVIDENCE PRESERVATION DEMAND — LITIGATION HOLD

YOU ARE HEREBY DIRECTED TO PRESERVE, AND TO INSTRUCT YOUR EMPLOYEES, AGENTS, CONTRACTORS, AND IT VENDORS TO PRESERVE, ALL EVIDENCE relating to the care and treatment of [PATIENT/CLAIMANT NAME], including but not limited to:

☐ Complete paper and electronic medical records (with metadata);

☐ All versions of electronic medical records, including audit trails, edit histories, deletion logs, and provider login records (Epic / Cerner / MEDITECH / [other EHR] system);

☐ Nursing notes, medication administration records (MARs), flow sheets, vital-sign records, and intake/output records;

☐ All diagnostic imaging studies (DICOM images, not solely reports), radiology reads, and PACS audit logs;

☐ Laboratory results, pathology slides and blocks, microbiology cultures, and chain-of-custody records;

☐ Operative reports, anesthesia records, perfusion records, and intraoperative monitoring strips;

☐ Telephone and triage records, patient-portal messages, and after-hours call-back logs;

☐ Consultation notes, sign-off communications, hand-off SBARs, and curbside-consult records;

☐ Informed consent documents and any pre-procedure decision-aid materials;

☐ Incident, occurrence, sentinel-event, root-cause-analysis, and peer-review materials (subject to applicable privilege determinations);

☐ Policies, procedures, protocols, order sets, and clinical-decision-support rules in effect at the time of treatment;

☐ Credentialing files, privileging files, OPPE/FPPE evaluations, and proctoring records for involved providers;

☐ Staffing records, schedules, acuity tools, nurse-to-patient ratios, and on-call rosters;

☐ Equipment logs (including ventilator, infusion pump, defibrillator, telemetry, and monitor maintenance, calibration, and event-recording records);

☐ Pharmacy dispensing records, smart-pump logs, and ADC (Pyxis / Omnicell) override and waste records;

☐ Any recorded statements, voicemails, or video/photographic evidence;

☐ Email, text, Teams/Slack, and electronic communication relating to the patient or the event.

Modification, destruction, alteration, or concealment of any of the foregoing may result in spoliation sanctions, an adverse-inference instruction, and/or attorneys' fees and costs under Alaska law. See, e.g., Alaska R. Civ. P. 37; Sweet v. Sisters of Providence, 895 P.2d 484 (Alaska 1995).

III. FACTUAL BACKGROUND

A. Patient Profile

[PATIENT/CLAIMANT NAME], a [age]-year-old [male/female], with relevant medical history of [____________________], no known drug allergies [or NKDA / list allergies], presented to [Facility] on [__/__/____] with [chief complaint].

B. Timeline of Negligent Care

[Date / Time]: [Describe presentation, vital signs, examination findings.]

[Date / Time]: [Describe diagnostic workup, orders entered, orders not entered.]

[Date / Time]: [Describe diagnosis or misdiagnosis, treatment plan adopted.]

[Date / Time]: [Describe procedure / intervention / medication administration.]

[Date / Time]: [Describe deterioration, signs missed, escalation failures.]

[Date / Time]: [Describe injury or death; subsequent care; transfers.]

C. Specific Departures from the Standard of Care

Based on review of the records by qualifying experts, we have identified the following departures from the applicable Alaska standard of care, AS 09.55.540 and AS 09.55.547:

1. ☐ [Departure 1]
2. ☐ [Departure 2]
3. ☐ [Departure 3]
4. ☐ [Departure 4]

D. Causation

But for the foregoing departures, [PATIENT/CLAIMANT NAME] would more likely than not have avoided [the injury / death / severe outcome] at issue. Specific causation findings include: [____________________].

E. Discovery

[PATIENT/CLAIMANT NAME] [or representative] first discovered, or in the exercise of reasonable diligence should have discovered, the malpractice on [__/__/____].

IV. EXPERT REVIEW — AS 09.20.185

We have retained qualifying experts who satisfy AS 09.20.185:

• ☐ [EXPERT 1 NAME], [credentials], board-certified in [____________________] (a board recognized by the State of Alaska), licensed in [____________________], actively practicing/teaching in the relevant specialty;

• ☐ [EXPERT 2 NAME, if applicable], [credentials];

• ☐ [Institutional / Hospital-Conduct Expert], [credentials].

The expert(s) have reviewed the relevant records and have concluded, to a reasonable degree of medical [or other professional] probability, that the standard of care was breached and that such breach was a proximate cause of the injuries described herein. We are prepared to provide an Expert Affidavit upon request and to participate in the AS 09.55.536 panel process upon filing.

V. DAMAGES SUMMARY

A. Injuries

[Describe injuries, permanency, prognosis, and life-care needs. If 70%+ severe permanent physical impairment under AS 09.55.549(d), so state with supporting documentation.]

B. Past Economic Damages

C. Future Economic Damages

D. Noneconomic Damages (subject to AS 09.55.549 cap)

E. Wrongful Death / Survival (if applicable)

F. Total Damages

VI. PRE-SUIT SETTLEMENT DEMAND

Based on liability, causation, severity of injury, and the foregoing damages analysis, and to permit early resolution without litigation expense, we hereby demand:

$[DEMAND AMOUNT]

This demand will remain open for forty-five (45) days from the date of this letter, expiring at 5:00 p.m. Alaska Time on [__/__/____], after which we intend to file suit in the Superior Court for the State of Alaska, [____] Judicial District at [____________________], without further notice.

If the parties wish to extend pre-suit discussions, we will consider a written tolling agreement. Sending this Notice does not, by itself, toll the statute of limitations.

VII. INFORMATION REQUESTED

To facilitate evaluation, please provide within thirty (30) days:

1. ☐ All applicable professional liability insurance policies (declarations pages and full policy forms);
2. ☐ Policy limits (per claim and aggregate), self-insured retentions, and umbrella/excess coverage;
3. ☐ Hospital, group, and individual provider policies (primary and excess);
4. ☐ Identification of all health care providers involved in the care, with NPI numbers and license numbers;
5. ☐ Identification of any independent-contractor agreements affecting respondeat superior or apparent agency;
6. ☐ Any incident, occurrence, or sentinel-event reports related to the care;
7. ☐ All policies, procedures, and clinical protocols in effect at the time;
8. ☐ Any prior or subsequent state-licensure or accreditation actions involving the providers or facility;
9. ☐ Confirmation of EHR system(s) used and audit-trail preservation;
10. ☐ A point of contact authorized to negotiate resolution.

VIII. HIPAA AUTHORIZATION FOR RECORDS RELEASE

A HIPAA-compliant authorization signed by the patient (or duly appointed personal representative) is enclosed as Attachment A, valid under 45 C.F.R. § 164.508. Please produce a complete certified copy of the patient's records (paper, electronic, imaging, audit trails, billing) within thirty (30) days of receipt to undersigned counsel. Records-copy fees consistent with AS 18.23.005 (or applicable federal rules) will be reimbursed upon receipt of a proper invoice.

IX. DOCUMENTATION ENCLOSED

• ☐ Attachment A — HIPAA-Compliant Authorization for Release of Protected Health Information
• ☐ Attachment B — Medical Records / Bills Summary (selected records)
• ☐ Attachment C — Curriculum Vitae of Reviewing Expert(s) (if disclosed)
• ☐ Attachment D — Wage and Earnings Documentation (if pled)
• ☐ Attachment E — Photographs / Imaging (selected)
• ☐ Attachment F — Death Certificate (wrongful death only)
• ☐ Attachment G — Letters of Personal Representative (wrongful death / survival only)

X. CONCLUSION

We believe this matter presents clear deviations from the standard of care that proximately caused serious harm. Resolution before formal litigation will conserve the parties' resources and is in the mutual interest of insurer, insureds, and our client. We invite a prompt response.

Should this matter not resolve within the time stated, we are prepared to file suit in the Superior Court for the State of Alaska, [____] Judicial District at [____________________], pursue the AS 09.55.536 expert advisory panel process, and litigate this matter to verdict.

Respectfully,

[FIRM NAME]

By: [____________________]
[ATTORNEY NAME], Alaska Bar No. [______]
[FIRM NAME]
[STREET ADDRESS]
[CITY, AK ZIP]
Telephone: [____________________]
Email: [____________________]
Attorney for [CLAIMANT NAME]

Enclosures: As listed above.

cc: [CLAIMANT NAME]; File.

ATTACHMENT A — HIPAA AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION

Patient Name: [____________________]
Date of Birth: [__/__/____]
Address: [____________________]
SSN (last 4): [____] (optional, for identity verification)
Patient Account No. / MRN: [____________________]

I, the undersigned patient (or duly appointed personal representative of the patient), hereby authorize the following provider(s):

[PROVIDER / FACILITY NAME], [STREET], [CITY, AK ZIP]

to release my protected health information ("PHI") to:

[FIRM NAME], ATTN: [ATTORNEY NAME], [STREET], [CITY, AK ZIP]; phone [____]; email [____].

Information Authorized for Release

☐ Complete medical record (paper and electronic), including:

• ☐ Physician/provider notes, history & physical, progress notes, consultation notes;
• ☐ Nursing notes, medication administration records, flow sheets, intake/output;
• ☐ Operative reports, anesthesia records, perfusion records;
• ☐ Diagnostic imaging studies (DICOM images and reports);
• ☐ Laboratory and pathology reports;
• ☐ Pharmacy and prescription records;
• ☐ Mental health, substance use disorder, HIV/AIDS, and genetic-test records (if applicable, with the additional disclosures required by 42 C.F.R. Part 2 and Alaska law);
• ☐ Audit trails / EHR access logs;
• ☐ Itemized billing statements and UB-04/CMS-1500 claim data;
• ☐ Incident reports, peer review (to the extent producible);
• ☐ Any other records relating to my care.

Purpose of Disclosure

For the purpose of evaluating, prosecuting, and/or settling a potential medical malpractice claim, including all related civil litigation.

Date Range

From [__/__/____] through [__/__/____] (or, if blank, all dates of care).

Expiration

This authorization expires on [__/__/____] or upon final resolution of the contemplated claim, whichever is later, but in no event more than two (2) years from the date signed unless extended in writing.

Patient Rights

I understand that:

• ☐ I may revoke this authorization at any time in writing, except to the extent action has already been taken in reliance on it. Revocation must be sent to the provider at the address above.
• ☐ Information disclosed pursuant to this authorization may be re-disclosed by the recipient and may no longer be protected by HIPAA.
• ☐ Treatment, payment, enrollment, or eligibility for benefits cannot be conditioned on signing this authorization.
• ☐ I have the right to receive a copy of this authorization.

Signature

[____________________]
[PATIENT / PERSONAL REPRESENTATIVE NAME]

Date: [__/__/____]

[If signed by personal representative:] Authority: ☐ Parent/legal guardian; ☐ Court-appointed guardian/conservator; ☐ Personal representative of decedent's estate (Letters attached); ☐ Holder of durable power of attorney for health care.

Sources and References

• AS Title 9, Chapter 55, Article 6 — Medical Malpractice Actions: https://www.akleg.gov/basis/statutes.asp#09.55
• AS 09.55.535 (voluntary arbitration): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-55-535/
• AS 09.55.536 (court-appointed expert advisory panel): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-55-536/
• AS 09.55.540 (burden of proof): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-55-540/
• AS 09.55.544 (apology / sympathy inadmissible): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-55-544/
• AS 09.55.547 (statewide standard of care): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-55-547/
• AS 09.55.549 (noneconomic damages cap): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-55-549/
• AS 09.55.560 (2-year limitations period): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-55-560/
• AS 09.10.055 (10-year repose): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-10-055/
• AS 09.10.070 (general 2-year tort limitations): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-10-070/
• AS 09.10.140 (tolling): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-10-140/
• AS 09.17.020 (punitive damages): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-17-020/
• AS 09.17.060 (pure comparative fault): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-17-060/
• AS 09.17.080 (pure several liability): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-17-080/
• AS 09.20.185 (expert qualifications): https://codes.findlaw.com/ak/title-9-code-of-civil-procedure/ak-st-sect-09-20-185/
• AS 09.50.250-.300 (Alaska State Tort Claims Act): https://www.akleg.gov/basis/statutes.asp#09.50
• 28 U.S.C. § 2675 (FTCA — administrative claim prerequisite): https://www.law.cornell.edu/uscode/text/28/2675
• 25 U.S.C. § 5321 (ISDEAA federal-tort coverage for tribal compactors): https://www.law.cornell.edu/uscode/text/25/5321
• 45 C.F.R. § 164.508 (HIPAA valid authorization): https://www.ecfr.gov/current/title-45/part-164/section-164.508
• Pedersen v. Zielski, 822 P.2d 903 (Alaska 1991)
• Sweet v. Sisters of Providence, 895 P.2d 484 (Alaska 1995)

This template is provided for informational purposes only and does not constitute legal advice. Verify all citations against current law before sending. Engage qualified Alaska counsel.