Medical Malpractice Pre-Litigation Demand Letters

Notice Requirements, MICRA Caps, and Pre-Suit Strategy for Healthcare Negligence Claims

Medical Malpractice Overview

🏥 What Is Medical Malpractice: Medical malpractice occurs when a healthcare provider's treatment falls below the accepted standard of care, causing injury to the patient. These claims are subject to special procedural requirements, damage caps, and shortened statutes of limitations.

Key Elements (All States)

Duty: Doctor-patient relationship existed (treatment, consultation, advice)
Standard of Care: Knowledge, skill, and care ordinarily possessed by members of medical profession
Breach: Provider failed to meet standard of care
Causation: Breach caused or contributed to injury (often requires expert testimony)
Damages: Physical injury, additional medical costs, pain and suffering, lost wages

Statute of Limitations

State	Time Limit	Discovery Rule
California	1 year from discovery OR 3 years from injury	Whichever occurs first (CCP § 340.5)
New York	2.5 years from act	Discovery rule for foreign objects
Texas	2 years from breach	Discovery rule applies; 10-year statute of repose
Florida	2 years from discovery	4-year statute of repose; 7 years for fraud/concealment

🚨 Extremely Short Deadlines: Medical malpractice has the SHORTEST statutes of limitations. California's 1-year/3-year rule is strictly enforced. Consult an attorney immediately if you suspect malpractice.

Pre-Suit Notice Requirements

California: 90-Day Notice (CCP § 364)

⚠️ Mandatory Notice: California requires 90-day notice before filing medical malpractice lawsuit. This notice tolls (extends) the statute of limitations by 90 days.

Notice must include:

Legal basis of the claim
Type of loss sustained (injury description)
Nature of injuries suffered

Florida: Pre-Suit Investigation (Fla. Stat. § 766.106)

Florida has the most detailed pre-suit requirements:

Intent to Initiate Litigation: Must notify each prospective defendant
Verified Medical Expert Opinion: Must obtain corroborating expert before filing
90-Day Investigation Period: Defendant has 90 days to investigate
Rejection or Settlement: Defendant must respond with admission, denial, or settlement offer

Other State Requirements

State	Pre-Suit Requirement
Michigan	Affidavit of merit from qualified expert required with complaint
Illinois	Affidavit and written report from reviewing health professional
Georgia	Expert affidavit required with complaint
New Jersey	Affidavit of merit within 60 days of answer
Pennsylvania	Certificate of merit required

MICRA & Damage Caps

California MICRA (Medical Injury Compensation Reform Act)

💰 Non-Economic Damage Cap: California limits non-economic damages (pain and suffering) to $350,000 for cases not involving death, and $500,000 for wrongful death cases (as of 2023, increasing annually through 2034).

What MICRA Does:

Caps non-economic damages (pain, suffering, emotional distress)
NO cap on economic damages (medical bills, lost wages, future care)
Limits attorney contingency fees on sliding scale
Requires periodic payment of future damages over $50,000

Other State Damage Caps

State	Non-Economic Cap	Total Cap
California	$350K-$500K (increasing)	None
Texas	$250K per defendant	$500K total non-economic
Florida	None (caps struck down)	None
New York	None	None
Ohio	$250K-$500K	None

Strategy Note: Because of damage caps, medical malpractice cases must have substantial economic damages (medical bills, lost income, future care costs) to be economically viable for litigation.

Sample 90-Day Notice (California)

[YOUR NAME] [YOUR ADDRESS] [DATE] VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED [HEALTHCARE PROVIDER NAME] [HOSPITAL/PRACTICE NAME] [ADDRESS] Re: Notice of Intent to Commence Action for Medical Malpractice Patient: [PATIENT NAME] Date(s) of Treatment: [DATES] Dear [PROVIDER NAME]: Pursuant to California Code of Civil Procedure Section 364, please accept this letter as formal notice of my intent to commence legal action against you for medical malpractice. LEGAL BASIS OF CLAIM: Professional negligence/medical malpractice arising from [describe treatment - e.g., "surgical procedure performed on [date]," "failure to diagnose condition," "medication error"]. TYPE OF LOSS SUSTAINED: [Describe injuries - e.g., "surgical complications requiring additional procedures," "delayed diagnosis resulting in disease progression," "adverse drug reaction causing organ damage"]. NATURE OF INJURIES: As a result of your negligence, I have suffered the following injuries: - [Physical injury #1] - [Physical injury #2] - [Ongoing medical treatment required] - [Lost wages/earning capacity] - [Pain and suffering] This notice tolls the applicable statute of limitations for 90 days pursuant to CCP § 364(d). A copy of this notice is also being sent to your malpractice insurance carrier at [address if known]. This matter may be resolved short of litigation if you or your insurer wish to discuss settlement. Otherwise, I intend to file suit upon expiration of the 90-day notice period. Sincerely, [YOUR NAME] cc: [Insurance Carrier, if known]

⚠️ Expert Review Required: Before sending notice, have your case reviewed by a qualified medical expert who can confirm breach of standard of care. Most malpractice attorneys offer free case evaluations.

Attorney Services

Suspect Medical Malpractice?

Medical malpractice cases require expert review and strict compliance with pre-suit requirements. Don't navigate this alone - the deadlines are extremely short.

Request Case Evaluation

What We Can Help With

Case Screening: Initial evaluation of whether you have viable malpractice claim
Medical Records Review: Obtaining and organizing treatment records
Expert Referral: Connection with qualified medical experts for case review
Pre-Suit Notice: Proper 90-day notice drafting and service
Litigation Referral: Referral to specialized medical malpractice trial attorneys

⏰ Act Now: California's 1-year statute of limitations is one of the shortest in the country. Contact an attorney within days of discovering potential malpractice.

Medical Malpractice Pre-Litigation — What California Patients Need to Know

Medical malpractice claims in California have unique procedural requirements, damage caps, and pre-suit obligations that differ significantly from other personal injury cases. Under California's Medical Injury Compensation Reform Act (MICRA), non-economic damages (pain and suffering) are capped at $350,000 for most cases (increasing to $750,000 for wrongful death cases starting in 2023 under AB 35). Before filing suit, you must serve a "Notice of Intent to Sue" under CCP § 364, giving the healthcare provider 90 days' notice. Understanding these requirements is essential for successfully pursuing a medical malpractice claim.

Common Medical Malpractice Scenarios

Misdiagnosis or delayed diagnosis — Failure to identify cancer, heart conditions, infections, or other serious conditions in time for effective treatment
Surgical errors — Wrong-site surgery, retained surgical instruments, nerve damage, or anesthesia complications
Medication errors — Wrong medication, incorrect dosage, failure to check drug interactions, or pharmacy errors
Birth injuries — Failure to monitor fetal distress, delayed C-section, shoulder dystocia injuries, or oxygen deprivation
Emergency room negligence — Failure to properly triage, premature discharge, or missed diagnosis in emergency settings

California's 90-Day Notice of Intent Requirement

California Code of Civil Procedure § 364 requires plaintiffs to serve a "Notice of Intent to Commence Action" on healthcare providers at least 90 days before filing a medical malpractice lawsuit. The notice must identify the legal basis for the claim and the type of loss sustained. Serving this notice tolls (pauses) the statute of limitations for 90 days, giving you additional time if you're approaching the deadline. The 90-day period allows for pre-suit settlement negotiations and is often when insurance carriers first become involved. Many cases settle during this window without ever filing a lawsuit.

What You Can Recover in California Medical Malpractice Cases

Medical expenses — Past and future healthcare costs to treat injuries caused by malpractice (no cap)
Lost income — Wages lost during recovery and reduced future earning capacity (no cap)
Pain and suffering — Capped at $350,000 under MICRA (increasing annually under AB 35)
Wrongful death damages — Survivors' non-economic damages capped at $500,000-$750,000 depending on year
Punitive damages — Available only in cases of malice, oppression, or fraud (rare in malpractice cases)

Pre-Litigation Strategy for Medical Malpractice

Before filing a medical malpractice claim, you need expert review to confirm the case has merit. Medical malpractice requires proving: (1) duty—the healthcare provider owed you a duty of care; (2) breach—they violated the applicable standard of care; (3) causation—the breach caused your injury; and (4) damages—you suffered actual harm. Expert medical testimony is required in virtually all cases. Request your complete medical records before the 90-day notice period. Consider consulting a medical malpractice attorney, as these cases are expensive to litigate and most work on contingency with fee limits under MICRA. The 90-day notice letter should be detailed enough to encourage settlement while preserving your litigation options.