Can ChatGPT craft a legal demand letter? Yes. A Medical Justice member on the west coast recently received a legal demand letter. I cannot prove it was crafted by a large language model. But it does not appear to have been written by a lawyer. At all.
Some background.
A plastic surgeon performed a breast implant procedure. The patient did reasonably well for months. She expressed some dissatisfaction with minor asymmetry. This could be remediated down the road if it persisted. Most plastic surgeons will wait a period of time to let the body heal. And see how gravity causes the implants to settle.
The patient called from an emergency room at a hospital where the doctor does not hold clinical privileges. She suggested there might be an infection. The surgeon asked if she could go to a facility where he did hold privileges, he could meet her. The surgeon wisely said, regardless, make sure it is evaluated. The patient was admitted for a few days of antibiotics and discharged or transferred (hard to say).
She resurfaced at another hospital, where the implants were removed, presumably for an infection.
Let’s stipulate it WAS an infection. Every surgeon will eventually have a patient who develops an infection. I mean EVERY surgeon. It is not a sine qua non of negligence. Infection is an occupational hazard of breaching the skin. Early identification is what’s important. And fast treatment. This patient chose to seek care at an outside institution.
Back to the demand letter for over $200k.
The letter was “written” by a person with no J.D. behind his name. It stated “On behalf of Ms. Smith.”
It stated: “Re: Final Demand for Full Compensation and Accountability.”
It stated: “Delivered by Hand and Certified Mail – Time-Sensitive Legal Notice.”
It was never delivered by hand.
It stated: “I am writing to you as the legal representative and authorized advocate for Ms. Smith regarding the medical procedure you performed on [date], at your facility-specifically, a breast lift and implant exchange.”
“You are being provided a one-time opportunity to resolve this matter outside of court. If you fail to respond or agree to settlement terms by [date], we will initiate formal litigation, supported by medical records, expert testimony, and applicable law.”
Notably this person did not state for the record he WAS a lawyer. But he was acting like a lawyer. This person is not admitted to the state Bar where the doctor practices. Presumably, he is not admitted to any state Bar. And it’s not clear he even went to law school.
There was no note of a HIPAA authorization by the patient to even speak with this “legal representative and authorized advocate.”
For the list of allegations, the “legal representative and authorized advocate” alleged medical malpractice. No surprise.
Then it listed as one of the legal violations and professional failures “Pre-litigation Notice Requirement.” That is not a legal violation and professional failure. That’s a procedural formality.
Next, it alleged a breach of the state’s Patient’s Bill of Rights.” Supposedly the surgeon denied the patient rights to “receive competent, compassionate care, be provided with clear information and post-surgical support, and be treated with dignity during a medical crisis.” While these are aspirational goals, it’s not clear they are independently compensable legally.
Next, a claim for emotional distress and disfigurement. “Ms. Smith’s physical disfigurement, emotional collapse, and prolonged suffering qualify for full non-economic damages under this statute. While [the statutory authority] limits liability for charitable organizations, your clinic is a private entity and therefore fully liable for the entire amount sought.” Lawyers would never include an unnecessary phrase about a charitable organization.
Next a claim under EMTALA. “Although EMT ALA primarily governs hospitals, its principles of mandatory stabilization and emergency care also apply when a provider’s neglect contributes to a patient’s need for emergency intervention. You knowingly failed to assist or stabilize a patient in postsurgical crisis, in violation of the act’s intent and spirit.” There is no private cause of action against a physician for EMTALA. Word salad does not change that analysis.
Then, a claim for lack of informed consent. The patient signed a document at least 8 pages long. It clearly stated infection as a known risk. The patient was informed.
Onward to the justification for damages. It was a laundry list demanding a refund for the failed procedure; estimated cost of revision surgery down the road; lost wages; mental health treatment; and $150k of pain and suffering. Missing was a line item for the cost of her hospitalization. Presumably, insurance covered that. But a lawyer would add that number to the bottom line, even if the carrier paid the claim. It’s true that carriers generally subrogate any money from a settlement/judgment to be made whole. Meaning, the carrier “fronts” the money, and if there is litigation, the policy language mandates that some of the settlement/judgment money be diverted back to the carrier. Because they “fronted” the money for diagnosis and treatment. A lawyer paid on contingency wants to see larger numbers. If they receive, say, 30% of what is collected, 30% of a larger number is a larger payout to the lawyer. So, leaving hospitalization expenses off of the line item demands would not be typical form for a plaintiff’s attorney. But it might be expected from a Large Language Model.
Then, the letter continued what would happen if the demand was ignored.
A medical malpractice lawsuit would be filed. A Board of Medicine complaint would be filed. And public statements would be made to the media.
While an attorney can file a complaint to the Board of Medicine, most state bars consider it unethical (and subject to disciplinary action) to threaten reporting a doctor to a disciplinary board to gain advantage in a civil dispute. For example, in California:
Rule 3.10 Threatening Criminal, Administrative, or Disciplinary Charges (a) (b) (c) A lawyer shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.
As used in paragraph (a) of this rule, the term “administrative charges” means the filing or lodging of a complaint with any governmental organization that may order or recommend the loss or suspension of a license, or may impose or recommend the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature but does not include filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action.
And threatening to go to the media to destroy a defendant’s reputation unless money is paid satisfies the elements of criminal extortion.
Finally, some states, like California, allow for a remedy for civil extortion.
As the California Supreme Court explained in Flatley v. Mauro, 39 Cal. 4th 299 (2006), extortion “has been characterized as a paradoxical crime in that it criminalizes the making of threats that, in and of themselves, may not be illegal.” Id. at 326. As the court further explained:
[T]hreats to do the acts that constitute extortion under Penal Code section 519 are extortionate whether or not the victim committed the crime or indiscretion upon which the threat is based and whether or not the person making the threat could have reported the victim to the authorities or arrested the victim.
Id. at 327. As the Flatley court also made clear, lawyers are not exempt from the extortion laws in their professional conduct, and “a threat that constitutes criminal extortion is not cleansed of its illegality merely because it is laundered by transmission through the offices of an attorney.” Id. at 328. Accordingly, a lawyer who commits extortion is subject to criminal prosecution and civil liability, in addition to discipline for violating Rule 3.10.
In Flatley, the entertainer Michael Flatley sued an opposing lawyer for extortion based on the lawyer’s pre-litigation demand letter and phone calls demanding an immediate payment of $1 million to settle his client’s rape allegations against Flatley. The lawyer threatened that, absent Flatley’s immediate payment of that amount, “all pertinent information and documentation” will be turned over to law enforcement and “press releases will be disseminated” to more than a dozen news media organizations. The Flatley court held that the lawyer committed extortion as a matter of law because he threatened to accuse or impute to Flatley “crimes” and “disgrace” unless Flatley paid $1 million (of which the lawyer was to receive 40%): “That the threats were half-couched in legalese does not disguise their essential character as extortion.” Id. at 330.
The letter closed with “This letter is not just a demand-it is an opportunity for you to take responsibility for the irreparable harm you caused. For Ms. Smith, this is not simply about money. It is about justice, accountability, and closure.”
Really?
By the way, the return address for the “legal representative and authorized advocate” was a Gmail account.
So was this penned by a lawyer, a law student, or a large language model?
Doesn’t sound like any lawyer I’ve interacted with.
What do you think?
A plastic surgeon in California received a very unusual Demand Letter from a patient. The first thing this plastic surgeon did was to become a member of Medical Justice as it is the only “insurance” that helps the surgeon before a Medical Malpractice notice or claim. “Practicing with Jeff” on your speed dial is certainly a great advantage. Jeff is working for the surgeon while the medical malpractice carrier is really working for the carrier. During those very stressful moments, Jeff gives savvy advice, like what is shown above, as well as the quiet comfort that the surgeon knows that a very smart guy is looking after his best interests. Jeff is a surgeon who has “been there” before. A great investment as well as providing comfort for a good nights sleep.
Richard B Willner
The Center for Peer Review Justice
http://www.PeerReviewJustice.ORG
I think if I received such a letter from anyone I would contact my awesome ace in the hole, Jeff Segal, which makes me glad I have a Medical Justice membership.