demand letter questions for attorneys

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Latest post Tue, Jun 26 2012 8:25 PM by ClydesMom. 2 replies.
  • Tue, Jun 26 2012 6:46 PM

    • cazzissimo
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    demand letter questions for attorneys

    I am a licensed attorney in NY and am considering taking a small dental malpractice case based primarily on misdiagnosis and unnecessary pain and suffering and punitive damages.  As this practice area is completely new to me, I am seeing if anyone on this list might be kind enough to provide thoughts as to the following questions:

    1. should the initial demand letter be on my letterhead and come from me or should it be from my client?

    2. to what extent should the letter detail my client's claim?

    3. should the demand letter include a settlement number?

    4. as the claim is relatively small, should the letter offer to resolve the claim without involving the defendant's insurance carrier?  in connection with this question, does it make any difference if the letter is sent under the client's name or my name?

    5. does a certificate of merit need to be obtained prior to sending a demand letter and/or be referenced in the demand letter?

    I hope that someone out there who has been on the receiving end of mentorship will be kind enough to be on the giving end now.  Of course, I understand that no legal advice is going be offered, just general thoughts.  Thank you!

  • Tue, Jun 26 2012 7:48 PM In reply to

    Re: demand letter questions for attorneys

    cazzissimo:
    I am seeing if anyone on this list might be kind enough to provide thoughts as to the following questions:

    Well, I had 35 years in the insurance industry and know my way around a liability claim.

    cazzissimo:
    should the initial demand letter be on my letterhead and come from me or should it be from my client?

    If you are your client's attorney of record for the malpractice claim (and hopefully have a written fee agreement that your client has read and understood) then any correspondence and negotiations are between you and the tort feasor on behalf of your client until the tort feasor is represented by his insurance company or counsel. Then everything is between lawyer and lawyer.

    cazzissimo:
    to what extent should the letter detail my client's claim?

    First you have to understand the difference between a demand letter and notice of claim. Demand letters or demand packages are generally delivered to the tort feasor when the claimant has completed his treatment or has reached maximum medical improvement (MMI) and the claim can be quantified.

    If you haven't put the dentist on notice that there is a claim, it would be a good idea to do that first. That would typically get his malpractice insurance company involved.

    cazzissimo:
    to what extent should the letter detail my client's claim?

    Assuming you are at the point where you can quantify your client's claim your demand letter should be very detailed and be accompanied by the client's medical or dental records regarding the nature of the injury and treatment.

    cazzissimo:
    should the demand letter include a settlement number?

    Yes. A demand letter or demand package totals up the dollar amount of monetary damages demanded.

    cazzissimo:
    as the claim is relatively small, should the letter offer to resolve the claim without involving the defendant's insurance carrier?  

    No. That's extortion. It's entirely up to the dentist whether he wants to involve his insurance company or not. All you do is state the claim. In case you didn't know, if you had to go to court with this, the existence of insurance is not admissable and has nothing to do with negotiating a settlement.

    cazzissimo:
    in connection with this question, does it make any difference if the letter is sent under the client's name or my name?

    Again, as you are your client's attorney, it's your job to write the letters and make the contacts.

    cazzissimo:
    does a certificate of merit need to be obtained prior to sending a demand letter and/or be referenced in the demand letter?

    I have no idea what you mean by a certificate of merit.

    But if you mean what does it take to support the claim for X dollars, it takes evidence of treatment and reports from experts as to what the tort feasor did wrong and what the consequences were to the claimant.

    Google "personal injury claims" and "demand package" for additional informaiton.

    Better yet, do your client a favor and urge him to consult a malpractice attorney. Your lack of knowledge could potentially do him more damage than the dentist did and leave you open to an attorney malpractice lawsuit.

    PS: There are generally no punitive damages in negligence claims unless the injury or damage to the patient was willful and malicious. Misdiagnosis doesn't rise to the level of punitive damages.

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  • Tue, Jun 26 2012 8:25 PM In reply to

    Re: demand letter questions for attorneys

    In addition to what Jack said let me add this:

    cazzissimo:
    4. as the claim is relatively small, should the letter offer to resolve the claim without involving the defendant's insurance carrier?

    Once you or the client puts the dentist on notice of the intent to potentially pursue a claim his/her malpractice policy requires that they notify the carrier.  Failure to notify the carrier of a potential claim can cause the claim to be denied for failure to notify and ultimately cancel the policy.

    cazzissimo:
    5. does a certificate of merit need to be obtained prior to sending a demand letter and/or be referenced in the demand letter?

    CPLR §3012-a  requires all medical/dental/podiatry malpractice complaints to be accompanied by a certificate by plaintiff's counsel that s/he has reviewed the facts of the case and has consulted with at least one physician who believes there is a reasonable basis for commencing the action.

    Med/mal is a very specific are of law.  If you are not experienced in it then I agree with Jack that you refer the client to counsel who is.  Another avenue is most states have a Dental Review board that will review a claim at no charge and if poor work, negligence etc. is found they negotiate a settlement for the client in correcting the work or a refund of fees paid at no charge to the claimant.  Since it is a small amount this may be a more viable option for your client.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

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