Sample Malpractice Settlement Demand Letter

Below is a sample demand letter from a medical malpractice case that thankfully settled before a lawsuit was filed. The names and parties have been changed.

Medical Malpractice Demand Letters Rarely Lead to Pre-Suit Settlement

First, a few comments about medical malpractice demand letters. These cases are challenging cases to settle before a suit is filed. Why? It is difficult to assess these cases’ value without going through the litigation process. How well did the experts hold up? Are the plaintiffs sympathetic? How likable is the doctor, and how convincing will he defend the care rendered?

Let Victims’ Lawyers Make Mistakes

There is a second reason these cases are so complex to settle pre-suit: the insurance companies. In Maryland and most states, the insurance companies have a policy of making plaintiffs’ attorneys work to get settlements, particularly if you do not have a history of getting malpractice verdicts and settlements. Because lawyers who do not know what they are doing often make mistakes in working up the claim.

In some tort cases, a plaintiffs’ lawyer has to screw up the claim pretty badly to kill an otherwise good case. In medical malpractice claims, at least with the procedural rules we have in Maryland, a neophyte malpractice lawyer takes just a few missteps to make a fatal mistake to the entire claim. The Maryland legislature and our courts are just not forgiving of these mistakes in healthcare negligence.

Make Plaintiffs’ Lawyers Work

The final reason these cases are hard to settle at the outset is that the insurance companies want to make even the best malpractice lawyers work for their settlement. They want lawyers to know there are no quick and easy malpractice settlements and that they have to work and spend money on experts and everything else a medical negligence case requires to get a settlement.

Many malpractice lawyers in Maryland chalk this up to spite, a hatred of trial lawyers. While probably a factor in the calculus, that sentiment is overblown. The reality is that this paradigm is part of a more complex strategy these insurance companies have. Medical malpractice insurance companies thrive because victims and their lawyers do not bring viable claims. Most people with a winning malpractice case do not bring a claim because they do not want to or cannot find a lawyer to help them.

If the ratio were reversed, it would spell ruin for these insurance companies. So if lawyers know they can send out a demand package in small malpractice cases and get reasonable settlements, it encourages lawyers to take those cases in the first place. If everyone with a viable malpractice claim could find a lawyer to take their claim, these insurance companies would collapse. So the hardball, “you are going to have to file suit” tactic is part of a more long-term strategy for these insurers.

Example Demand Letter

The sample demand letter below is to a hospital. This is an entirely different animal than suing a doctor with malpractice insurance. Hospitals are willing to settle cases pre-suit if it is a case they think they will lose at trial and the lawyer bringing the claim has a history of bringing successful claims. Hospitals know that malpractice lawsuits come with the territory. But they do not want to lose at trial because it tarnishes their brand. So many hospitals are willing to settle cases pre-suit for good values if the liability case is solid.

So sometimes, our malpractice lawyers skip making a demand.  We will send more of a “let us know if you are interested before we file a malpractice lawsuit” letter.  Few malpractice lawsuits will settle out-of-court before a lawsuit is filed.  But it is often worth the effort because you can save yourself – and, more importantly, your clients – time and effort with a pre-suit settlement.

Please note some jurisdictions require an intent-to-sue letter.  This is not an intent-to-sue letter.

Sample Malpractice Settlement Demand

Sandy Manchester, RN, J.D.
Senior Counsel, Claims and Litigation
Bethany Moss Medical Center
345 Jackson Street
Baltimore, Maryland 21201

Re: Medical Malpractice claim of the late Maggie Marryman

Date of Death: September 15, 2023

Dear Ms. Manchester:

As you know, Miller & Zois represents the parents of the late Maggie Marryman. I am writing to resolve this wrongful death claim without protracted litigation.

Ms. Marryman underwent an ERCP procedure on September 15, 2023, at your hospital and died during the procedure. Ms. Marryman was only 30 years old. During the procedure, she developed an air embolism that went to her heart. According to the autopsy report, the air became trapped in her right ventricle, and she was never evacuated during the 60-minute code. In fact, neither the anesthesiologist nor the gastroenterologist considered the possibility that Ms. Marryman had an air embolism, which was causing her hemodynamic instability and cardiac arrest. These physicians never took any action to diagnose an air embolism as the cause of her cardiac arrest. This failure and breach of the standard medical care is what caused Ms. Marryman’s death.

Air embolisms during ERCP procedures are rare but well-recognized complications. If not promptly investigated and addressed, it will lead to the death of the patient. This is what occurred in Ms. Marryman’s case. This complication is so well known that numerous articles have been written spelling out the importance of the physicians involved in the procedure to be keenly aware of this possibility and to address it promptly.

For example, Dr. Marek Mirski writes that:

Vascular air embolism is a potentially life-threatening event that is now encountered routinely in the operating room and other patient care areas. The circumstances under which physicians and nurses may encounter air embolism are no longer limited to neurosurgical procedures conducted in the “sitting position” and occur in such diverse areas as the interventional radiology suite or laparoscopic surgical center. Advances in monitoring devices coupled with understanding the pathophysiology of vascular air embolism will enable the physician to manage these potentially challenging clinical scenarios successfully.

Clinicians must be aware of this silent but dangerous complication that can occur during many seemingly routine operative procedures and interventions.

Dr. Mirski’s article, Diagnosis and Treatment of Vascular Air embolism, appeared in the Journal of the American Society of Anesthesiologists in January 2007 – fifteen years before Ms. Marryman’s ERCP procedure. It is impossible to fathom why the anesthesiologist at Bethany Moss, who was responsible for monitoring Ms. Marryman during this procedure, was not aware of this dangerous complication and failed to take any action to evaluate, diagnose, and treat the air embolism that killed her.

Other physicians when faced with this similar complication can promptly identify the air embolism and take the necessary action to evacuate the air embolism and prevent the patient’s death. See this article by H.M. Goins enclosed. There is no viable reason or excuse why the physicians who were responsible for Ms. Marryman’s care could not have implemented the same procedures and evacuated the air embolism in Mr. Marryman’s heart and prevented her death.

Bethany Moss Medical Center has certainly performed its own peer review of this tragic death and determined the potential exposure if this matter goes to trial.

I am reaching out to you pre-litigation to resolve this claim and avoid litigation. Enclosed please find a disc containing Ms. Marryman’s medical records from Bethany Moss and the autopsy report.

Would you kindly contact me after you have reviewed the records to discuss settlement of this claim?

Ronald V. Miller, Jr.

9 Elements of a Medical Malpractice Settlement Demand Letter

A medical malpractice demand letter should have some or all of these elements.  We say “some or all” because not all of these are necessary or appropriate in every demand letter. So, this is more of a “things to consider” list than a checklist.

  1. Patient Information: Clearly state the patient’s name, the date of birth, and any relevant medical record numbers.
  2. Incident Description: Detail the specific incidents of alleged malpractice. Include dates, times, names of involved medical personnel, and the incident’s location.
  3. Medical Treatment Summary: Describe the medical treatment received before, during, and after the incident, including diagnoses, procedures, medications, and any consultations with other healthcare professionals.
  4. Allegation of Negligence: Clearly state your allegations against the healthcare provider or institution. This should include how the care provided deviated from the accepted standard of care in the medical community.
  5. Injury and Impact Description: Describe the alleged malpractice’s physical, emotional, and financial impact on the patient’s life. Include any long-term disabilities, loss of income, emotional distress, and the need for ongoing medical treatment.
  6. Medical Records and Documentation: Reference any attached medical records, bills, and other documentation that support your claim.
  7. Demand for Compensation: Specify the amount of compensation sought if you think it is warranted.  This can include medical expenses (past and future), lost wages, pain and suffering, and other damages. Do we do this in most cases?  Not unless we have a reason to do so. Most of our medical malpractice demand letters are more of an invitation to make an offer. You rarely want to bid against yourself in an initial demand.  We did that once and regretted it.
  8. Settlement and Negotiation: Express your willingness to settle the claim out of court but indicate your readiness to pursue legal action if a satisfactory settlement is not reached.
  9. Deadline for Response: Give a specific date you expect a response. This creates a sense of urgency and a timeline for negotiations.

Sample Demand Letter Resources

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