If you have been harmed by sub-standard medical care and think you might have a medical malpractice case in Delaware, the first thing to figure out is the deadline for getting your case started. Here you’ll find a discussion of the “statute of limitations” for starting a medical malpractice case in Delaware, and a few more state rules that may apply to your medical malpractice claim.
The “statute of limitations” is the legal term for the deadline the person suing (the plaintiff) has to file a medical malpractice lawsuit against a health care provider.
Medical malpractice cases have some of the shortest and most severe statute of limitations rules of any kind of lawsuit -- only lawsuits against the government are worse! To make matters more complicated, there are often special requirements a plaintiff has to fulfill before he or she can sue for medical malpractice.
Failure to take the proper steps could postpone when the suit can be filed and cause the plaintiff to miss the statute of limitations deadline. Finally, it can often be difficult to determine when the clock started running and what the deadline actually is.
The rules affecting all of these issues in Delaware are discussed below.
In Delaware, you must start the lawsuit within two years of when the medical malpractice was committed. That means that the two-year clock starts running when the health care provider does, or neglects to do, something that causes a medical injury.
If the injury could not be discovered during the two year period, the statute of limitations is extended one more year. In other words, the absolute longest statute of limitations is three years from when the medical malpractice occurred if the injury couldn’t reasonably be discovered. The only exception is for the care provider’s fraudulent concealment of the malpractice, i.e. intentionally deceiving you so you don’t discover the malpractice. In that event, the statute of limitations is “tolled”, i.e. put on pause, until you discover, or should discover, the malpractice.
If a minor is under six, the lawsuit must start within two years of the injury occurring or by the minor’s sixth birthday, whichever is latest.
The basic laws for Delaware Medical Malpractice Statute of Limitations can be found at Del. Code Ann. tit. 18 § 6856.
In Delaware, you are required to file an “affidavit of merit” with you first sue a health care provider for medical malpractice. The affidavit of merit is essentially sworn testimony from a medical expert that you actually have a viable case. If you don’t file the affidavit with your first complaint, you haven’t officially started the case and the statute of limitations will not stop until you file the affidavit.
You can also send a notice of intent to sue to the defendants that will give you an additional 90 days to start the lawsuit after the statute of limitations has expired. However, the intent to sue notice must be mailed before the original statute of limitations expires.
Medical malpractice damage awards, i.e. how much money an injured plaintiff can receive in a lawsuit, are also limited or “capped” in some states. Both the strict statute of limitations and the damage caps are the result of states’ efforts to lower the cost of medical malpractice liability insurance. While many states place a cap on the amount and/or type of damages that a plaintiff can receive in a medical malpractice case -- such as pain and suffering damages -- Delaware does not have any such law.