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Delaware Medical Malpractice Law - An Overview

By Aaron Larson

Law Offices of Aaron Larson

July, 2004

Important Notice: The following overview of Delaware's medical malpractice laws is presented on an as-is basis. This information is believed accurate as of the date of authorship, but is not intended to provide a complete analysis of medical malpractice law and may not reflect subsequent changes in the law. For a full review of Delaware's medical malpractice law, or for a determination of how the law applies to a specific incident or injury, please consult a malpractice lawyer licensed to practice in the state of Delaware.

Contents

What Is Medical Malpractice

Medical malpractice, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:

  • Misdiagnosis of, or failure to diagnose , a disease or medical condition;
  • Failure to provide appropriate treatment for a medical condition;
  • Unreasonable delay in treating a diagnosed medical condition;

Medical malpractice actions can be brought by the injured patient against any responsible licensed health care provider, including doctors, counselors, psychologists and psychotherapists.

Limits on Malpractice Damages

There are no limits on economic or non-economic damages. Punitive damages are permitted only when there is a finding of malicious intent to injure, or of willful and wanton conduct on the part of the defendant.

Collateral Source Rule

Under a traditional collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff's own insurance coverage. For medical malpractice cases in Delaware, evidence of collateral source payments from public sources may be introduced for purposes of a discretionary offset.

Rules for Expert Witnesses

Unless a case review panel determines that the defendant's negligence caused the plaintiff's injury, expert testimony is required to establish a breach of the standard of care. An expert witness must have knowledge of a field of medicine similar to that practiced by the defendant, and the standard of practice for a similar locality.

Joint and Several Liability

Under the rule of joint and several liability, where more than one defendant is found liable for the injury suffered by a plaintiff, each defendant is individually liable for the entire amount of the judgment, such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment.

Statute of Limitations

Medical malpractice actions must be commenced within 2 years from the date of injury, or within three years of the date of injury if the injury was not known and could not reasonably have been discovered during the initial two year period. For medical malpractice cases involving minors, a minor must file within the two year statutory limitations period or, if below the age of six at the time of injury, up to their sixth birthday, whichever time period is greater.

Limits on Attorney Fees

Attorney fees are limited to 35% of the first $100,000.00 of the damages award, 25% of the next $100,000.00, and 10% of any additional recovery.

Additional Rules

Cases are reviewed by a medical negligence review panel. The panel's findings are admissible as prima facie evidence at trial.

In the event that damages are paid by installment, in the event that the plaintiff dies before all payments have been made, compensation for future damages is deducted from any payments which follow the plaintiff's death.

Why Use A Malpractice Lawyer

Medical malpractice law is a highly technical field of law, and malpractice lawsuits tend to be fiercely defended by well-funded defense firms.

Medical malpractice lawsuits can be exceptionally expensive to pursue, with costs often exceeding $100,000.00. Due to the technical skills involved in prosecuting a malpractice claim, the possibility that an inexperienced lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed, and the very high costs the malpractice law firm typically must advance, an injured patient is very well served by going with a specialist firm.

Even within the specialized practice of medical malpractice law, you will find that some lawyers have subspecialties of practice, for example focusing on surgical errors, misdiagnosis, or birth trauma cases.

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