Montana Notice of Intent to Sue / Pre-Suit Notice — Medical Malpractice (with MLP Review Demand)

NOTICE OF INTENT TO SUE FOR MEDICAL MALPRACTICE AND DEMAND FOR MONTANA MEDICAL LEGAL PANEL REVIEW

VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED
AND VIA EMAIL (where address known)

Date: [__/__/____]

TO:

RE:

I. NATURE OF THIS NOTICE

This letter constitutes formal pre-suit notice that [CLAIMANT FULL LEGAL NAME] ("Claimant") intends to assert claims for medical malpractice arising out of care provided by you and/or your employees, agents, ostensible agents, and contractors during the period identified above.

Claimant further gives notice that, pursuant to the Montana Medical Legal Panel Act, Mont. Code Ann. § 27-6-101 et seq., Claimant intends to submit, or has submitted, an Application for Review to the Montana Medical Legal Panel ("MLP") naming you as a respondent. Submission to the MLP is a JURISDICTIONAL prerequisite to filing a malpractice complaint in any Montana state or federal district court under Mont. Code Ann. § 27-6-105.

II. SUMMARY OF THE CLAIM

A. Care at Issue

1. Claimant first presented for the care at issue on [__/__/____] with the following complaint or condition: [____________________________________________________________].

2. Claimant received care from you and/or your personnel between [__/__/____] and [__/__/____] at [____________________________________].

3. The care included, but was not limited to, the following encounters and procedures:

• [__/__/____] — [____________________________________________________________];
• [__/__/____] — [____________________________________________________________];
• [__/__/____] — [____________________________________________________________].

B. Departures from the Standard of Care

Claimant contends that you and/or your personnel departed from the applicable standard of care in the following respects:

☐ Failure to timely and accurately diagnose [____________________];
☐ Failure to order, perform, or interpret diagnostic studies, including [____________________];
☐ Misreading or failure to act upon imaging or laboratory results;
☐ Negligent surgical or procedural performance, specifically [____________________];
☐ Failure to recognize and respond to a deteriorating clinical course;
☐ Failure to obtain timely consultation with [specialty: ____________________];
☐ Failure to obtain informed consent for [procedure: ____________________];
☐ Negligent prescription, dosing, or medication monitoring of [____________________];
☐ Negligent post-procedure monitoring, discharge, or follow-up;
☐ Negligent supervision of residents, trainees, or ancillary staff;
☐ Institutional / corporate negligence in credentialing, staffing, equipment, or policy;
☐ Other: [____________________________________________________________].

C. Resulting Injury and Damages

4. As a direct and proximate result of the foregoing departures from the standard of care, Claimant has suffered the following injuries and damages: [____________________________________________________________].

5. Claimant first discovered, or through reasonable diligence should have discovered, the injury and its causal relationship to the care at issue on or about [__/__/____].

6. Claimant intends to seek recovery for past and future medical expenses, lost wages and lost earning capacity, pain and suffering, mental and emotional distress, loss of enjoyment of life, household services, disfigurement, and all other damages permitted under Montana law, subject to the noneconomic damages limitation in Mont. Code Ann. § 25-9-411 to the extent constitutionally applicable.

III. STATUTE OF LIMITATIONS AND TOLLING

Pursuant to Mont. Code Ann. § 27-2-205, an action for medical malpractice must be commenced within three (3) years from the date of injury or three (3) years from the date the plaintiff discovers or reasonably should have discovered the injury, whichever is later, but in no event more than five (5) years from the date of injury (subject to a fraudulent-concealment exception and statutory tolling for minors and persons of unsound mind).

Pursuant to Mont. Code Ann. § 27-6-702, the running of the limitations period is tolled upon the MLP's receipt of the Application for Review and resumes thirty (30) days after the MLP's final decision. Claimant is acting to preserve all timing rights under these provisions.

IV. INTENT TO SUBMIT TO THE MONTANA MEDICAL LEGAL PANEL

Pursuant to Mont. Code Ann. §§ 27-6-105, 27-6-301, and 27-6-302, Claimant gives notice that:

☐ Claimant has submitted an Application for Review to the MLP on [__/__/____], MLP File No. [____________________]; or

☐ Claimant will submit an Application for Review to the MLP on or before [__/__/____].

The MLP Application identifies you as a respondent and includes:

1. A statement in reasonable detail of the elements of the conduct believed to constitute malpractice;
2. The dates on which the conduct occurred;
3. The names and addresses of all physicians, hospitals, and witnesses; and
4. An authorization for the release of Claimant's medical records to the Panel.

Pursuant to Mont. Code Ann. § 27-6-401, the Panel will sit as six members in review of the claim — typically three physicians and three attorneys for physician-only claims, with substitutions for dentists, podiatrists, or facility administrators based on the respondents named.

The Panel's decision is advisory under Mont. Code Ann. § 27-6-606 and is not admissible at any subsequent trial, except as narrowly provided by statute.

V. DEMAND FOR PRESERVATION OF EVIDENCE

You are hereby placed on formal notice of pending litigation and are obligated to preserve, and to instruct your employees, agents, contractors, and vendors to preserve, all evidence relevant to the care of Claimant, including, without limitation:

1. Medical Records. All paper and electronic medical records, including the complete chart, progress notes, nursing notes, physician orders, anesthesia records, operative reports, recovery-room records, discharge summaries, consults, and ancillary reports;

2. Imaging and Pathology. All radiology images (DICOM), reports, and read logs; all pathology slides, blocks, reports, and gross descriptions;

3. Laboratory and Pharmacy. All laboratory results, microbiology cultures, blood-bank records, and pharmacy/MAR records;

4. Medication Administration. Pyxis or comparable dispensing-system audit logs and overrides relevant to Claimant's care;

5. Equipment. Maintenance, calibration, service, and recall records for any equipment used in Claimant's care, including [____________________];

6. Electronic Health Record Metadata. Audit trails, access logs, edit histories, and copy-forward histories for all EHR entries relating to Claimant;

7. Communications. All emails, secure messages, text messages, voicemails, and pages between or among providers concerning Claimant's care;

8. Billing Records. Itemized bills, CPT/HCPCS coding worksheets, and remittance advices;

9. Incident / Event Reports. All incident reports, event reports, root-cause analyses, and morbidity-and-mortality records concerning Claimant — subject to any applicable peer-review privilege, which Claimant does not concede applies but does acknowledge as a contested issue;

10. Personnel and Credentialing. Personnel files, credentialing files, privileging files, and competency assessments for any provider who participated in Claimant's care;

11. Policies and Procedures. Versions of all policies, procedures, protocols, order sets, and clinical pathways in effect during the care at issue.

You are further instructed to suspend any document-destruction, auto-delete, or routine-purge practices that could result in the loss of any of the foregoing items, and to issue a litigation hold to all custodians.

VI. APOLOGY STATUTE — RESERVED

Claimant acknowledges that Mont. Code Ann. § 26-1-814 renders certain statements of apology, sympathy, commiseration, condolence, compassion, or general benevolence inadmissible as evidence of admission of liability in a medical malpractice action. Nothing in this Notice is intended to discourage compassionate communication; however, factual admissions and statements outside the scope of the apology statute are not protected.

VII. SEVERAL LIABILITY

Pursuant to Mont. Code Ann. § 27-1-703, joint and several liability is substantially abolished in Montana. Claimant intends to seek apportionment of fault among all responsible parties consistent with that statute, and reserves the right to amend this Notice and the MLP Application to add additional respondents whose negligence is identified through the MLP process or otherwise.

VIII. CARRIER AND COVERAGE INFORMATION REQUESTED

To facilitate orderly handling of this matter, Claimant requests that you (or your risk-management department) provide:

1. The name, address, claims-contact, telephone, and email for each professional liability insurance carrier providing primary, excess, or umbrella coverage applicable to the dates of care at issue;
2. Each policy number and the applicable per-claim and aggregate limits; and
3. Identification of any self-insured retention or deductible.

Please direct your carrier(s) and counsel to make contact with the undersigned at the address below within thirty (30) days of receipt of this Notice.

IX. SETTLEMENT POSTURE — RESERVED

Claimant remains open to discussing pre-suit resolution of this matter, including alternative dispute resolution. Any such discussions are conducted under Mont. R. Evid. 408 and are inadmissible as proof of liability or amount. Nothing in this Notice constitutes a settlement demand or waiver of any right or remedy.

X. NO WAIVER

This Notice is sent without waiver of, and with full reservation of, all rights, claims, defenses, and remedies available to Claimant under Montana and federal law. Errors or omissions in this Notice are not admissions and do not limit the scope of the claims that may be asserted in the MLP Application or in any subsequent civil action.

XI. SIGNATURE

Respectfully submitted,

[LAW FIRM NAME]

By: ______________________________________
[ATTORNEY FULL NAME], Esq.
Montana State Bar No. [____________]
[Firm Address]
[City, MT ZIP]
Telephone: [(___) ___-____]
Facsimile: [(___) ___-____]
Email: [____________________]

Attorney for Claimant, [CLAIMANT FULL LEGAL NAME]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I caused a true and correct copy of the foregoing Notice of Intent to Sue for Medical Malpractice and Demand for Montana Medical Legal Panel Review to be served on the following recipients by the method indicated:

______________________________________
[ATTORNEY OR PARALEGAL FULL NAME]
Date: [__/__/____]

ENCLOSURES

• HIPAA-compliant Authorization for Release of Medical Records (executed by Claimant)
• Letter of Representation
• Copy of MLP Application for Review (if already filed) or Draft Application (if not yet filed)
• Litigation Hold Notice (companion document)
• Other: [____________________________________]

MONTANA-SPECIFIC PRACTICE NOTES

No Mandatory Notice Period. Unlike some states, Montana does not impose a fixed statutory pre-suit waiting period (e.g., 60 or 90 days) between a Notice of Intent and the filing of a claim with the MLP. Practitioners typically send the Notice contemporaneously with — or shortly before — the MLP Application.

MLP Is Mandatory and Jurisdictional. Submission to the MLP under Mont. Code Ann. § 27-6-105 is a JURISDICTIONAL prerequisite. Failure to submit before filing suit is grounds for dismissal.

Statute of Limitations (Mont. Code Ann. § 27-2-205). Three-year discovery rule with five-year statute of repose; tolled during MLP review per § 27-6-702.

Cap on Noneconomic Damages (Mont. Code Ann. § 25-9-411). $250,000 per claim arising from a single incident, subject to statutory adjustments — verify current cap before settlement discussions.

Several Liability (Mont. Code Ann. § 27-1-703). Modified comparative fault; defendants 50% or less at fault are severally liable only.

Apology Statute (Mont. Code Ann. § 26-1-814). Sympathy and apology statements inadmissible to prove liability.

Common Venues. Yellowstone (13th JD — Billings); Cascade (8th JD — Great Falls); Missoula (4th JD — Missoula); Lewis and Clark (1st JD — Helena); Gallatin (18th JD — Bozeman).

SOURCES AND REFERENCES

• Mont. Code Ann. §§ 27-6-101 to 27-6-704 — Montana Medical Legal Panel Act
• Mont. Code Ann. § 27-6-105 — Submission of malpractice claim required
• Mont. Code Ann. § 27-6-301 — How cases submitted
• Mont. Code Ann. § 27-6-302 — Contents of application
• Mont. Code Ann. § 27-6-401 — Composition of panel
• Mont. Code Ann. § 27-6-606 — Findings of panel — admissibility
• Mont. Code Ann. § 27-6-702 — Tolling of statute of limitations
• Mont. Code Ann. § 27-2-205 — Actions for medical malpractice
• Mont. Code Ann. § 25-9-411 — Medical malpractice noneconomic damages limitation
• Mont. Code Ann. § 27-1-703 — Multiple defendants — determination of liability
• Mont. Code Ann. § 26-1-814 — Apology, sympathy, or benevolence — inadmissible
• Newville v. State, Dep't of Family Servs., 267 Mont. 237 (1994)
• Rules of Procedure for the Montana Medical Legal Panel (Mont. Sup. Ct.)
• Montana Medical Legal Panel — official site (montanamedicallegalpanel.org)