Delaware Medical Malpractice Laws & Statutory Rules

An introduction to the laws and statutory rules governing medical negligence claims in Delaware.

By , MSLIS · Long Island University

If you have been harmed by substandard medical care and think you might have a medical malpractice case in Delaware, there are a number of specific state rules that you must follow in order to pursue your claim. Medical malpractice lawsuits are known for being extremely complicated, and you'll almost always need the help of expert witnesses and a good lawyer. But it can be helpful to understand the basics of the process before you head to court. In this article, we'll discuss some of the most important laws that could affect the outcome of a medical malpractice case in Delaware, including

  • the state's statute of limitations for medical malpractice cases
  • the "affidavit of merit" requirement
  • the rules on compensation you can receive if your case succeeds, and
  • what happens if you're partly at fault for your own injuries.

The Statute of Limitations in Delaware Medical Malpractice Cases

A "statute of limitations" is a law that sets a strict time limit on the amount of time a plaintiff (the person suing) has to file a lawsuit in court. If you miss the deadline, it's a safe bet that your case will be tossed out and you'll lose the opportunity to pursue compensation for your injuries. That's why it's so important to understand—and comply with—the statute of limitations.

Delaware's medical malpractice statute of limitations states that you must start the lawsuit within two years of the date the medical error occurred. However, there is an exception for situations in which the injury "was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured person." In those cases, the deadline is extended to three years from the date the malpractice was committed.

There are a couple of additional provisions in Delaware's medical malpractice statute of limitations that could apply to your case:

If the injured patient is a child younger than six. In this situation, the plaintiff (usually a parent or guardian) must file the lawsuit within two years of the date of the medical error, or by the child's sixth birthday, whichever is later.

If the plaintiff sends a "Notice of Intent to investigate" to the defendant. If you send a "Notice of Intent to investigate" to each defendant (the health care provider or facility you're intending to sue), you may "toll" (pause) the applicable statute of limitations for 90 days. Although the law does not require the notice to be filed with the court, it does require the notice to:

  • be sent by certified mail, return receipt requested, to the defendant's or defendants' regular place of business
  • state the name of the potential defendant or defendants, name the potential plaintiff, and give a brief description of the issue being investigated, and
  • be sent before the original statute of limitations deadline expires.

(Del. Code Ann. tit. 18 § 6856 (2022).)

Delaware's "Affidavit of Merit" Requirement for Medical Malpractice Lawsuits

As part of broader tort-reform efforts, many states have passed laws requiring plaintiffs in medical malpractice cases to submit some type of proof of the defendant's negligence at the beginning of the case, often in the form of a document called an "affidavit of merit." This is the case in Delaware.

Under Delaware law, the plaintiff is required to file an "affidavit of merit" alongside the complaint that starts the medical malpractice lawsuit. The affidavit of merit must include sworn testimony from a medical expert, stating that there are reasonable grounds to believe that the defendant breached the applicable standard of care and that that breach was a "proximate cause" of the injuries suffered by the plaintiff.

If you don't file the affidavit of merit on time—and you haven't requested a one-time 60-day extension by showing "good cause"—the clerk of the court is required to refuse to file the lawsuit.

See Del. Code Ann. tit. 18 §§ 6853 and 6854 for all of the details on affidavits of merit and the requirements for medical experts.

No Cap on Damages in Delaware Medical Malpractice Cases

Some states have laws that "cap" (or limit) the amount of damages that can be awarded to a plaintiff in a successful medical malpractice case. Most states with these laws cap only noneconomic damages, which can include compensation for difficult to quantify losses, such as pain and suffering. Delaware, however, has no law that caps damages in medical malpractice cases. That means plaintiffs won't face any statutory limits on the amount of compensation they can receive for injuries caused by a health care provider's negligence.

Delaware's Rules on Shared Liability

In some medical malpractice cases, the defendant might argue that you are at least in part liable for causing your own injuries by, for example, failing to follow the doctor's instructions. So what happens if the court agrees and finds you partially responsible? In such situations, Delaware follows what's called a "modified comparative negligence" rule that still allows you to receive compensation—as long as your share of the fault is not greater than the defendant's. That is, your share of the fault cannot be more than 50 percent.

Let's look at an example. Say that a jury finds that your doctor's negligence during surgery led to complications. But the jury also finds that you failed to follow all of your doctor's orders, resulting in more serious injuries. Because of the doctor's medical errors, you were awarded $100,000 in damages, but, because the jury also finds that you were ten percent responsible for your injuries, your award will be reduced to $90,000. But if you were found to be more than 50 percent responsible, you wouldn't be entitled to receive any compensation at all.

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