What is the statute of limitations for filing a medical malpractice lawsuit in Delaware?

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Question:

What is the statute of limitations for filing a medical malpractice lawsuit in Delaware?

Answer:

First, as a quick refresher for those who aren’t fluent in “legalese,” a statute of limitations is a law that puts a firm limit on the amount of time you have to go to court and file a lawsuit after you have suffered some type of injury or loss. There are different deadlines depending on the kind of lawsuit you want to file.

Delaware’s statute of limitations for medical malpractice lawsuits can be found at Title 18 Delaware Code section 6856, and it gives a potential medical malpractice plaintiff two years to get the medical malpractice lawsuit started. In Delaware, that means filing not just the initial complaint but also an affidavit of merit from a qualified expert medical witness who states that there is “reasonable grounds to believe that there has been healthcare medical negligence” committed by the defendant.  

Usually the clock starts running on “the date upon which such injury occurred” but Delaware makes an exception in cases where the injury “was unknown to and could not in the exercise of reasonable diligence have been discovered” by the prospective plaintiff. In that situation, the deadline is extended from two to three years.  But you can’t rely on this “discovery” exception once three years have passed from the date on which the medical error was committed.

Delaware also has a fairly unique rule that lets a potential medical malpractice plaintiff “toll” the statute of limitations (keep it from running, in other words) for 90 days by sending a “Notice of Intent to investigate” to every potential defendant -- by certified mail, with return receipt requested -- at the defendant's regular place of business. This notice does not need to be filed with the court, but it needs to include the defendant’s name, the name of the potential plaintiff, and a brief description of the issue being investigated.

Finally, what if you try to file the lawsuit after the statute of limitations deadline has passed? You can bet that the doctor or health care facility you’re trying to sue will ask the court to dismiss the case. The court will almost certainly grant the request, and that will be the end of your lawsuit. So it’s crucial to pay attention to the Delaware statute of limitations as it applies to your medical malpractice case.

by: David Goguen, J.D.

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