Delaware Medical Malpractice Lawyer

Delaware malpractice claims move on a short timeline and require expert support from the start. Understanding both early can prevent a valid claim from being lost.

When does Delaware's malpractice deadline run out?

Generally two years from the date of the injury. When the injury could not reasonably have been discovered within that time, the limit extends to three years from the date of the injury.

The three-year rule is not an open-ended discovery rule. It caps the deadline at three years, even if the harm was discovered later. That makes Delaware stricter than many states. Consider a surgical sponge left in a patient that causes pain only after 30 months. The patient may have only a few months left to file once the cause is found. Minors may have special rules, and in some cases a written notice to the provider before the deadline can extend it for a short time, but these exceptions should be confirmed by an attorney.

What is an affidavit of merit in Delaware?

It is a sworn statement from a qualified expert, filed under seal with the complaint, stating that there are reasonable grounds to believe the provider breached the standard of care and caused the injury.

The expert generally must be licensed and practicing in the same or a similar field as the defendant. The affidavit is usually accompanied by the expert's resume. Because it must be filed with the complaint, expert review needs to be complete before filing. A missing or inadequate affidavit can lead to dismissal. An extension may be granted in some circumstances, but it should not be counted on.

What kinds of malpractice cases do we handle in Delaware?

We review cases where a provider's failure to meet the standard of care caused serious harm. Delaware's health care includes large regional hospital systems in the north, community hospitals downstate, and many outpatient clinics and urgent care centers.

• Delayed diagnosis of cancer, stroke, heart attack, sepsis or infection.
• Surgical errors, including retained objects and wrong-site surgery.
• Medication errors in hospitals, clinics and pharmacies.
• Birth injuries from poor fetal monitoring or delayed delivery; see our birth injury practice.
• Emergency room errors, such as discharging a patient with warning signs.
• Lack of informed consent about significant risks.

Are damages capped in Delaware malpractice cases?

No. Delaware does not cap economic or noneconomic damages in medical malpractice cases.

Without a cap, the value of a case depends on proof. We work with treating doctors, life care planners and economists to document future medical needs, lost earning capacity and how the injury changed daily life. Defense lawyers often focus on causation, arguing the patient's condition would have caused the same harm anyway. That makes careful expert testimony on causation essential.

A spouse may also have a claim for loss of consortium, reflecting how the injury changed the marriage and household. When a child is injured, parents may have their own claim for medical expenses they paid. These related claims are usually brought in the same lawsuit, so they need to be identified before the complaint and affidavit of merit are filed.

How does fault affect a Delaware malpractice claim?

Delaware's modified comparative fault rule applies. Your award is reduced by your share of fault and barred if your fault exceeds the providers' combined fault.

Imagine a patient who stopped taking a prescribed blood thinner without telling the doctor, while the doctor also failed to monitor lab results that showed a dangerous trend. A jury values the harm at $400,000.

• Patient 30% at fault: recovery of $280,000.
• Patient 50% at fault: recovery of $200,000.
• Patient 51% at fault: recovery of zero.

Pharmacy records, portal messages and lab histories often show what the provider knew and when.

How should you begin a Delaware malpractice case?

Collect records and contact a lawyer as early as possible, because the deadline and affidavit requirement leave little room.

1. Request complete medical records, including imaging and nursing notes.
2. Write down when symptoms appeared and when you learned of the error.
3. Keep notes from later doctors who identified the problem.
4. Do not sign any release or settlement documents without advice.
5. Contact our team for a free case review. Our medical malpractice practice, Delaware wrongful death page and Delaware injury overview have more information.