Delaware Medical Malpractice Law


What is Medical Malpractice

Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.

A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.

Medical Negligence

Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,

  • Failure to diagnose a medical condition or disease,

  • Misdiagnosis of a medical condition or disease,

  • Failure to provide medically appropriate treatment,

  • An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;

  • Mistakes in the prescription or dosing of medication.

Informed Consent

Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.

Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.

Damages in Delaware Malpractice Cases

Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.

Joint and Several Liability

In Delaware, when more than one defendant is sued, under the principle of joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance.

The Collateral Source Rule

Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Delaware has eliminated this rule for medical negligence cases.

The Statute of Limitations for Medical Malpractice in Delaware

The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Delaware, a person claiming injury from malpractice has two years from the date of injury to file a cause. If the injury is not discovered and should not reasonably have been discovered within that period, the cause may be filed no later than three years from the date of the underlying act or omission.

For minors under the age of four, a cause of action for medical malpractice may be filed within two years from the date of injury or by age six, whichever is later.

Additional Rules for Delaware Malpractice Cases

Additional rules affecting malpractice litigation in the State of Delaware include:

Limits on Attorney Fees

Delaware limits attorney fees by statute to an amount not to exceed 35 percent of the first $100,000 recovered in damages, 25 percent of the next $100,000, and 10 percent of all damages awarded in excess of $200,000. A claimant may elect instead to pay for the attorney's services on a mutually satisfactory per diem basis.

Medical Negligence Review Panels

In Delaware, medical malpractice actions are subject to evaluation by a medical negligence review panel, composed of two physicians, an attorney, and two laypersons. After reviewing the case the panel has thirty days to submit to the court a written opinion expressing whether they believe that malpractice occurred, whether expert opinion is required on the issue of liability, and the extent of any damages or disability suffered by the plaintiff. The opinion reached by the medical negligence review panel is admissible as prima facie evidence in the pending malpractice case brought by the claimant, but the opinion is not conclusive.

Affidavit of Merit

When filing a malpractice complaint, the plaintiff must file an affidavit of merit from a qualified expert, along with the current curriculum vitae of the expert witness, stating that there are reasonable grounds to believe that there has been health care medical negligence committed by each defendant. The affidavit of merit is maintained as a confidential part of the court record, but is subject to in camera review if the defendant moves for a review of its compliance with the governing statute.

An expert signing an affidavit of merit must be licensed to practice medicine as of the date of the affidavit, and during the three years immediately preceding the alleged negligent act must have been engaged in the treatment of patients or teaching medicine in the same or similar field as the defendants, or both. The expert must be board certified in the same or similar field of medicine if the defendant or defendants is board certified, except if the expert began the practice of medicine prior to to the existence of Board certification in the applicable specialty.

Medical Expert Witness Restrictions

Under Delaware law, no person is competent to give expert medical testimony as to applicable standards of skill and care unless the person is familiar with the degree of skill ordinarily employed in the field of medicine on which he or she will testify.

Apology Law

An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Delaware law provides that with the exception of the admission of liability or fault, any and all statements, writings, gestures, or affirmations made by a health care provider or an employee of a health care provider that express apology, sympathy, compassion, condolence, or benevolence relating to the pain, suffering, or death of a person as a result of an unanticipated outcome of medical care are inadmissible in a civil action that is brought against a health care provider.

Why Consult a Medical Malpractice Lawyer

If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.

Copyright © 2016 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Feb 14, 2016.