Delaware Medical Malpractice Laws

Before you file a medical malpractice lawsuit in Delaware, get familiar with the state laws that could have a big impact on your case.

By , J.D.

If you're thinking about filing a medical malpractice lawsuit in Delaware, be aware that these cases are notoriously complex. Medical records need to be sifted through, expert witness testimony (for both sides) is often essential, and the injured patient needs to comply with a number of procedural requirements right at the outset. In this article, we'll take a look at the Delaware "affidavit of merit" requirements for medical malpractice lawsuits, the statute of limitations filing deadline for these kinds of cases, and more.

Delaware's Medical Malpractice Statute of Limitations

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 can let pass before going to court and filing 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 Delaware Code Title 18 section 6856, and it gives a potential medical malpractice plaintiff two years to get their 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 (more on this below).

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 the clock 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 each 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. That's why it's crucial to pay attention to (and comply with) the medical malpractice statute of limitations.

The Affidavit of Merit Requirement in Delaware Medical Malpractice Lawsuits

According to Delaware Code Title 18 section 6853, any medical malpractice lawsuit filed in the state must be accompanied by an "affidavit of merit" from an expert witness.

This additional filing must:

  • be signed by a medical professional who qualifies as an expert witness under Delaware law
  • include the expert's current "curriculum vitae" setting out his or her qualifications, experience, and expertise, and
  • state the expert's "reasonable grounds" belief that each named defendant health care provider committed medical negligence when treating (or failing to treat) the plaintiff (specifically, state that the expert has reasonable grounds "to believe that the applicable standard of care was breached" by each named provider, and that "the breach was a proximate cause" of the plaintiff's claimed harm).

If "good cause" is shown, the court will grant a single 60-day extension for filing the affidavit. According to section 6853, good cause "shall include, but not be limited to, the inability to obtain, despite reasonable efforts, relevant medical records for expert review."

If the affidavit does not accompany the initial complaint, and if a motion for extra time to file the affidavit has not been filed, the clerk of the court is required to refuse to file the lawsuit.

No Medical Malpractice Damages Cap in Delaware

A number of states have passed laws that "cap" the amount of compensation ("damages") that a successful plaintiff can receive even after prevailing in a lawsuit against a health care provider.

Delaware has no such law on the books, so an injured patient doesn't need to worry about any statutory limit on his or her medical malpractice damages.

This article provides a brief summary of some of the Delaware laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Delaware medical malpractice attorney will have the answers.

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