Thinking about filing a Delaware medical malpractice lawsuit? It's not a decision to make lightly. Medical malpractice cases are notoriously difficult, complex, and expensive, and not by accident. State laws typically make malpractice plaintiffs (the parties who file a lawsuit) jump through a variety of hoops that aren't required in, say, car accident or slip-and-fall lawsuits.
Delaware law is fairly typical. After an overview of the elements that make up a Delaware medical malpractice case, we'll look at the state's malpractice statute of limitations, case filing requirements, medical malpractice review panels, and more.
The elements of a medical malpractice case typically don't vary much from one state to another. Del. Code tit. 18, § 6853(e) (2024) spells out the requirements of Delaware law. As a general rule, you'll need an expert witness (discussed below) to testify to:
Your medical malpractice case begins by establishing the medical standard of care. In general, the standard of care requires that your provider must act as carefully as would a reasonably careful provider in the community—one who has the same education, training, and experience as your provider—while providing patient care under the same circumstances.
If that sounds like legalese on steroids, it is. In simpler terms, the standard of care describes what your health care provider should have done to deliver acceptable care. Your Delaware medical malpractice attorney will work with your standard of care expert witness to prove this element.
The essence of a medical malpractice case is substandard care, meaning care that falls short of what the standard of care requires. You might see it described as a "breach" of the standard of care. The standard of care explains what your provider should have done. This element shows what your provider actually did (or failed to do) that made your care substandard.
Here again, your lawyer will work with your standard of care expert to establish this element.
When your doctor breaches the standard of care, the law calls it medical malpractice. But malpractice, by itself, doesn't mean you win your case.
You also need to prove you were injured. How are you worse off now than you were before the substandard care? Did your condition get worse, or get worse faster, than would otherwise have been expected? Did you develop a new illness or condition? Have your chances of recovery or survival gotten worse?
Without real and substantial injuries, you don't have a winning medical malpractice case. A good Delaware medical malpractice lawyer knows this, of course. Proving that you suffered injuries usually isn't difficult.
Finally, you must show that your injuries were caused by the substandard care. This element, called "causation," is like the bow that ties all the other elements together. Without it, your case just falls apart.
Sometimes, causation is obvious. Quite often, though, it can be a real challenge. In failure to diagnose cases, for instance, causation is likely to be a hotly contested question, one that can be outcome determinative. As with the standard of care and substandard care elements, expert testimony will be critical for proof of causation.
Both you and the defendant (the party you're suing) will need expert witnesses. In general, an expert is a person who's qualified by reason of education, training, or experience to testify about scientific or technical matters that are beyond the knowledge of laypersons. It's the judge's job to decide whether experts satisfy this requirement.
Delaware law lays out specific medical malpractice expert witness requirements. For starters, to testify about the standard of care in a medical field, an expert must be familiar with the standards of care for that field. (Del. Code tit. 18, § 6854 (2024).) To have that familiarity, the witness must be a licensed doctor and must:
(Del. Code tit. 18, § 6853(c) (2024).)
Your Delaware medical malpractice attorney knows these requirements and understands the ins and outs of working with medical experts.
A "statute of limitations" is a law that limits your time to file a lawsuit in court. Every state, including Delaware, has lots of them. Different filing deadlines apply to different kinds of lawsuits. For instance, state law might say that a lawsuit over a written contract must be filed within four years, suits to clear title to land must be filed within 10 years, and personal injury cases must be filed within two years.
You can find Delaware's medical malpractice statute of limitations at Del. Code tit. 18, § 6856 (2024). As a general rule, it gives you two years from the date you were injured to file your medical malpractice lawsuit. In Delaware, starting your medical malpractice lawsuit means filing not just the initial complaint but also an "affidavit of merit" (discussed below) from a qualified medical expert witness.
Delaware makes an exception to the two-year general rule in cases where your injury "was unknown to and could not in the exercise of reasonable diligence have been discovered... ." In that situation, Delaware's "discovery rule" applies. When the discovery rule applies, you can file your lawsuit up to three years after the date of the malpractice. But three years is the filing date cutoff, whether you've discovered your malpractice-related injury or not.
(See Del. Code tit. 18, § 6856(1) (2024).)
Delaware has a fairly unique rule that lets a medical malpractice plaintiff "toll" (pause) the statute of limitations for 90 days by sending to each defendant a written notice of intent to investigate. The notice must be sent to the defendant's regular office address by certified mail, return receipt requested. It should include each defendant's name, the plaintiff's name, and a brief description of the issue being investigated. (See Del. Code tit. 18, § 6856(4) (2024).)
What happens if you try to file your lawsuit after the statute of limitations deadline has passed? Barring an extension that gives you more time to file, your medical malpractice claim is legally dead. Unfortunately, nothing you do will bring it back to life.
The defendant will ask the court to dismiss your case. The court will almost certainly grant the request, and that will be the end of your lawsuit. You won't have any better luck trying to negotiate a settlement. As far as Delaware is concerned, you don't have a claim, so there's nothing to settle.
The affidavit of merit is a common procedural hurdle in medical malpractice lawsuits. The basic idea is that when filing suit, a plaintiff also must file an affidavit or a certificate attesting that they've had the case reviewed by a medical expert, who says the defendant provided substandard care.
Delaware is an affidavit of merit state. (See Del. Code tit. 18, § 6853 (2024).) A Delaware affidavit of merit must accompany the complaint, be signed by an expert witness (described above), and:
For "good cause" shown, the court will grant a single 60-day extension to file the affidavit—but only if the extension is requested before the statute of limitations deadline. If an affidavit doesn't accompany the complaint, and if the plaintiff hasn't timely filed a motion for extra time, the clerk of the court must refuse to file the lawsuit.
Finally, an affidavit of merit isn't necessary when the complaint alleges injuries or death caused by:
Any party to a Delaware medical malpractice case can ask that a medical negligence review panel be convened. (Del. Code tit. 18, § 6802(b) (2024).) A review panel includes five members, consisting of two health care providers, one Delaware attorney, and two laypersons. (Del. Code tit. 18, § 6804(a) (2024).)
The parties submit evidence to the review panel. That evidence can include:
(Del. Code tit. 18, § 6807 (2024).)
After the evidence has been submitted, any party or the panel itself can ask for a hearing. The panel is authorized to subpoena witnesses and order that documents be produced at the hearing. The parties are allowed to call witnesses and address the panel. A transcript of the hearing must be made. (Del. Code tit. 18, § 6808 (2024).)
Within 30 days after the evidence has been produced and any hearing has been held, the panel produces a written opinion. By majority vote, the panel decides whether the defendant's care was negligent and makes one or more of these findings:
(Del. Code tit. 18, § 6811(a)-(b) (2024).)
A party who's dissatisfied with the panel's opinion can ask that it be reviewed by the Superior Court where the lawsuit is pending. The court is authorized to strike 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 opinion can be admitted into evidence at a later trial of the case. In addition, witnesses who appeared before or submitted evidence to the panel can be called as witnesses at trial. (Del. Code tit. 18, § 6812 (2024).)
If you win your medical malpractice case, you'll recover what the law calls "damages" to compensate you for your injuries and losses. Many states have laws that limit, or "cap," the damages you can collect. Caps usually apply to damages for injuries such as emotional distress, disability, disfigurement, and pain and suffering.
With one exception, Delaware isn't a damage cap state. In other words, you can collect the full amount of damages you're able to prove, without any arbitrary limitation.
The exception? In lawsuits against a Delaware county or city, your total damages are capped at $300,000 unless the municipality has more insurance coverage. (Del. Code. tit. 10, § 4013 (2024).)
Medical malpractice lawsuits are among the toughest and costliest of all personal injury claims. In a typical case, the costs for expert witnesses alone can easily reach tens of thousands of dollars. Jurors sympathize with health care workers and give them the benefit of the doubt, so plaintiffs often start at a disadvantage. That's one reason why medical malpractice lawsuits settle less frequently than other injury cases. Long story short: A medical malpractice case is nowhere you want to venture alone.
A Delaware medical malpractice attorney understands the law, knows how to find and work with expert witnesses, and will guide you through the process. You can bet that the defendant will be represented by an army of insurance company lawyers and investigators. Without experienced legal help on your side, you stand little chance of making it a fair fight.
When you're ready to move forward, here's how to find a Delaware medical malpractice lawyer who's right for you.