Delaware Medical Malpractice Laws and Statutory Rules

If you've been harmed by substandard medical care and think you might have a Delaware medical malpractice case, you should take the time to learn the basics of Delaware medical malpractice law. Medical malpractice lawsuits are known for being extremely complicated, and you'll almost always need the help of expert witnesses and an experienced Delaware medical malpractice attorney.

We start with a quick overview of the elements needed to prove a Delaware medical malpractice case. From there, we'll cover the statute of limitations for filing your lawsuit, the state's affidavit of merit requirement, Delaware's malpractice review panels, and more.

The Elements of a Delaware Medical Malpractice Case

To prove a Delaware medical malpractice case, you need to establish these four elements:

• the medical standard of care
• your care was substandard
• you suffered an injury, and
• your injury was caused by the substandard care you received.

(See Del. Code tit. 18, § 6853(e) (2024).)

The Standard of Care

A medical malpractice case starts with the medical standard of care. The standard of care requires your provider to care for you as skillfully and carefully as would a reasonably careful provider in the community—one with the same education, training, and experience as your provider—while caring for patients like you under the same circumstances.

Yes, that's a mouthful. Here's a simpler version: The standard of care describes what your health care provider should have done to provide you with acceptable care. Importantly, it doesn't guarantee perfect or mistake-free care. Mistakes sometimes happen, even when your provider meets the standard of care.

Your Care Was Substandard

Substandard care—what the law sometimes calls a "breach" of the standard of care—is the essence of a medical malpractice case. The standard of care tells you what your provider should have done. This element tells you what your provider actually did (or failed to do) that fell short of the standard of care.

You Were Injured

You don't have a medical malpractice case unless you were injured. In a nutshell, this element asks how you're worse off now than you were before your provider cared for you. Did you develop a new illness or injury? Did your condition get worse, or get worse more quickly, than was originally expected? Has your chance of recovery or survival decreased?

As a rule, proving you were injured isn't a problem. Proving what caused your injury, on the other hand, can be.

Your Injury Was Caused by Substandard Care

Finally, you must show that your provider's substandard care was the cause of your injury. This element, known as "causation," is the glue that holds all the other elements together. If the glue doesn't work, your case falls apart. Sometimes, causation is easy to prove. Other times, proving it can be a huge challenge.

The Role of Expert Witnesses

In the usual malpractice case, the way you prove these elements is through medical expert witnesses. Delaware law spells out the requirements for medical experts. (See Del. Code tit. 18, § 6853(c), tit. 18, § 6854 (2024).) It's up to the court to decide whether an expert is qualified to testify.

Your Delaware medical malpractice lawyer understands these requirements and knows how to work with experts to put your case together.

Delaware's Medical Malpractice Statute of Limitations

A "statute of limitations" is a law that puts a limit on your time to file a lawsuit in court. Miss the deadline, and your case probably gets tossed out. You'll lose the opportunity to pursue compensation ("damages," in the language of the law) for your injuries. Because the stakes are so high, it's critical that you understand—and comply with—the statute of limitations.

The General Rule: Two Years From the Date You Were Injured

Delaware's medical malpractice statute of limitations, found at Del. Code tit. 18, § 6856 (2024), says that as a rule, you must start your lawsuit within two years from the date you were injured. To start your lawsuit, you have to file:

• your complaint, and
• an affidavit signed by your expert witness, attesting that your care was substandard (discussed below).

More Time to File: Delaware's "Discovery Rule"

In most cases, the two-year statute of limitations clock starts running on the date you were injured. But what if you don't discover the malpractice, or your injury, right away? In that situation, Delaware's "discovery rule" might give you more time to file.

The discovery rule applies when your injury "was unknown to and could not in the exercise of reasonable diligence have been discovered by [you]." When the discovery rule applies, the filing deadline is extended to three years from the date the of the malpractice. (Del. Code tit. 18, § 6856(1) (2024).)

Your lawyer can explain whether the discovery rule applies in your case and, if it does, how long you have to file your lawsuit.

Other Statute of Limitations Rules

Here are two more statute of limitations rules that could apply to your case.

Injured patient is younger than six. When a child younger than six years old is the injured patient, the filing deadline is the later of two years from the date of the medical error, or the child's sixth birthday. (Del. Code tit. 18, § 6856(2) (2024).)

Plaintiff sends a "notice of intent to investigate." The statute of limitations is "tolled," meaning paused, for 90 days when you notify the defendant (the health care provider you intend to sue) that you're investigating a possible medical malpractice claim. Your notice must:

• be sent by certified mail, return receipt requested, to the defendant's regular place of business
• state the defendant's name, the plaintiff's name, and briefly describe the issue being investigated, and
• be sent before the statute of limitations deadline expires.

(Del. Code tit. 18, § 6856(4) (2024).)

Delaware's Affidavit of Merit Requirement

Many states have laws that place roadblocks in the path of would-be medical malpractice plaintiffs. One of the most common is the "certificate of merit," also known as an "affidavit of merit." As the name suggests, these laws require the plaintiff to file with their lawsuit an affidavit or certificate stating that a qualified medical expert has reviewed the case and found the defendant's care to be negligent.

Delaware is an affidavit of merit state. (See Del. Code tit. 18, § 6853 (2024).) An affidavit must accompany your medical malpractice complaint. It must be signed by a medical expert, include a copy of the expert's "curriculum vitae" (resume), and say that:

• there are reasonable grounds to believe the defendant breached the applicable standard of care, and
• the breach caused your injury.

You can get a one-time, 60-day extension to file the affidavit of merit. You'll need to show "good cause" for the delay and ask for the extension before the statute of limitations runs out. (Del. Code tit. 18, § 6853(a)(2)-(3) (2024).)

If you don't file the affidavit of merit on time—and you haven't timely requested an extension—the clerk of the court isn't allowed to file your lawsuit.

Medical Malpractice Review Panels

Once a malpractice case has been filed in court, any party can ask the court to convene a medical negligence review panel. (Del. Code tit. 18, § 6802(b) (2024).) The panel reviews evidence submitted by the parties, including:

• the plaintiff's medical records
• x-rays
• lab reports
• deposition transcripts
• excerpts from medical books and articles, and
• any other evidence the panel agrees to consider.

(Del. Code tit. 18, § 6807 (2024).)

After the evidence has been submitted, a party (or the panel itself) can ask for a hearing. At the hearing, the parties are allowed to call witnesses and can address the panel. The hearing must be "on the record," meaning a transcript must be made. (Del. Code tit. 18, § 6808 (2024).)

The panel produces a written opinion within 30 days after receiving the evidence and holding a hearing. By majority vote, panel members decide whether the defendant's care was negligent and make one or more of these findings:

• the evidence supports a conclusion that the defendant breached the standard of care
• the evidence doesn't support a conclusion that the defendant breached the standard of care
• specified factual issues that don't require expert testimony need to be decided by the court or a jury, or
• the defendant's conduct did or didn't cause the plaintiff's injuries.

(Del. Code tit. 18, § 6811(a)-(b) (2024).)

At the request of a party who's dissatisfied with the panel's opinion, the Superior Court where the lawsuit is pending will review it. The court can delete any parts of the opinion that contain legal errors or that aren't supported by substantial evidence. (Del. Code tit. 18, § 6811(d)-(e) (2024).)

The panel's opinion is allowed into evidence at a later trial of the case. Witnesses who appeared before or submitted evidence to the panel also can be called as witnesses at trial. (Del. Code tit. 18, § 6812 (2024).)

Delaware Doesn't Cap Medical Malpractice Cases

Many states "cap" (limit) the medical malpractice damages a successful plaintiff can win. Typically, these laws cap only noneconomic damages such as loss of enjoyment of life, disfigurement, emotional distress, and pain and suffering.

With one exception, Delaware isn't a damage cap state. In other words, you can collect the full amount of malpractice damages you're able to prove, without arbitrary limitations.

The lone exception applies to lawsuits against Delaware cities or counties. In those suits, your total damages can't exceed $300,000 unless the municipality carries a higher amount of insurance. (Del. Code. tit. 10, § 4013 (2024).)

Get Help With Your Delaware Medical Malpractice Case

Medical malpractice lawsuits are among the most difficult and costly of all personal injury cases. Without an experienced Delaware medical malpractice lawyer to guide you through the process, you stand little chance of success. The defendant will be represented by insurance company lawyers who know the law and how to use it against you.

Make it a fair fight. When you're ready to move forward, here's how you can find a Delaware medical malpractice attorney near you.