Delaware Medical Malpractice Laws

To reduce the growing cases of medical malpractice in Delaware, laws have been enacted requiring plaintiffs to submit an affidavit of merit or expert testimony before pursuing claims in court and receiving compensatory damages. Since the law took effect, the state has seen a significant decrease in medical claims. In 2022, Becker’s ASC Review reported that Delaware ranked 41st out of 50 states, with only 76 cases of medical malpractice, based on data from the National Practitioner Data Bank. But even though malpractice incidents in Delaware are relatively lower, mishaps can still occur if healthcare professionals are negligent or inattentive while performing their duties.

Victims of medical malpractice are not limited in how much they can receive for their entitled economic, non-economic, and punitive damages, provided they are not 51% or more at fault. The largest verdict in Delaware was a $123 million settlement for over 900 children who were sexually abused by a former pediatrician. This verdict amounted to $119 million from six different insurance agencies, $1 million in free medical and mental health care from the hospital, and $3 million from the Medical Society of Delaware.  

Medical malpractice cases in The First State range from medication errors and misdiagnoses to surgical mishaps and birth injuries. These incidents involve negligent parties like healthcare practitioners, institutions, and pharmaceutical companies.

Victims have been advised to seek counsel from a medical malpractice lawyer to represent them in court, gather documentary evidence, and guide them in navigating the legal system. As a preliminary, this article can help victims, their families, and even those who are curious about medical malpractice law. It covers topics on how to determine if a claim is valid, who and when to sue, and how to obtain benefits.  

What Qualifies as Medical Malpractice in Delaware?

In Delaware, medical malpractice results from any breach of contract or tort committed by healthcare providers that causes a patient to sustain injuries, worsen their condition, or become ill. These include misdiagnoses, birth injuries, defective medical products, surgical blunders, anesthesia mistakes, and prescription errors. 

According to the Delaware Supreme Court, a plaintiff must establish that the negligent behavior of the defendant is the mere cause of the losses, as the latter is not legally responsible for any injuries that may manifest after the alleged misconduct. For instance, a child who sustained a severed tendon and developed stiffness in the index finger after the treatment may not have a basis for a medical malpractice claim as a result of uncooperativeness during the examination; in this situation, the developed stiffness is completely unrelated to the initial treatment.   

Although usually used interchangeably, there is a difference between medical negligence and medical malpractice. Medical negligence happens if a healthcare practitioner does not adhere to a standard of care, including misdiagnoses and failure to perform a follow-up checkup. In contrast, medical malpractice is any act that directly harms an individual, like surgical mishaps. 

In Delaware, personal injury laws protect those who suffered damages and wrongful death caused by someone else’s fault, whether an individual, facility, or entity. These may include cases involving medical malpractice, motor vehicle accidents, and dangerous premises.  

Who Can You Sue for Medical Malpractice in Delaware?

Victims of medical malpractice have legal rights to sue at-fault parties, including healthcare providers like corporations, professionals, and institutions licensed by the Division of Professional Regulation following the Delaware statutory codes. These include:

• Physicians and their assistants.

• Nurses.

• Surgeons.

• Doctors of osteopathy.

• Physical therapists.

• Pharmacists.

• Genetic counselors.

• Hospitals.

• Umbrella organizations.

• Pharmaceutical companies.

Exemptions

The following individuals and entities are exempted from medical malpractice liability:

• Any person working in an emergency where they do not receive a fee or other consideration.

• Massage practitioners.

• Those in the business of cosmetology, barbering, and manicuring.

• Those in the healing practice that is based on spiritual or religious means.

• Physicians working in the military or civilian branch of the government.

• Attending nurses for terminally ill patients who are in a nursing home, hospice, extended care facility, or residential community. 

• Medical interns.

• Circumcision practitioners.

• Individuals who are registered in a different state and perform a brief emergency medical treatment in a healthcare institution or federal agency or testify in a judicial proceeding. 

Meanwhile, employees of towns, municipalities, counties, and cities in Delaware are given sovereign immunity, allowing them to be exempted from medical negligence or malpractice cases. However, they are personally liable if their actions are outside their work duties or performed with malicious intent.

Medical professionals who report malpractice or negligent behavior to the Delaware Division of Professional Regulation are immune from claims, damages, suits, and liabilities. Practitioners who are aware of any unprofessional conduct of their co-workers are required to submit a report within 30 days. On the other hand, those who fail to do so may pay a fine between $10,000 and $50,000. 

In addition, those who volunteer to provide emergency care, first aid, or assistance to people in need are protected under the Good Samaritan Law. They are not liable for any injuries or damages that an individual may sustain from these actions unless it is proven that they did it recklessly or wantonly.  

Medical Malpractice Liability Insurance Requirements in Delaware

Medical practitioners are not legally mandated to acquire liability insurance in Delaware; however, some hospitals may require them to obtain one. According to the Delaware Nurses Association, the liability policy provides coverage for the defendant’s expense reimbursement, HIPAA privacy violations, and deposition representation and protects their reputation and assets.

Liability insurance also offers tail coverage, which handles claims that were filed after the expiration of an existing claims-made policy. This is 300% higher than the current premium, has limited time to repurchase, and offers an aggregate limit of up to $3 million.   

What Is the Statute of Limitations in Delaware for Medical Malpractice Cases?

In Delaware, victims of medical malpractice who suffered physical injuries, mental anguish, or wrongful death have a statute of limitations of two years, starting from the date the alleged unprofessional behavior took place, to pursue legal action. Meanwhile, those who suffered continuous negligent medical treatment, including two or more claims, are given two years—beginning on the date of the last action—to sue healthcare providers. Parents or guardians of children under six years old must file a medical malpractice claim within two years or until the child’s sixth birthday. Victims are given 90 days, excluded from the stated limitation, to submit a notice of intent to investigate at-fault parties through certified mail or by visiting the latter’s place of business.   

On the other hand, individuals who discover their injury after two years have three years from the discovery date to file a medical malpractice case. However, evidence must be presented as a primary cause of injury, such as:

• A foreign object left inside the patient’s body after surgery.

• A surgical procedure performed on the wrong organ or body part of the patient.

• An explosion or fire from a substance that was used in the treatment.

What Do You Need to Prove in a Delaware Medical Malpractice Case?

Individuals in Delaware are legally required to submit a complaint with the Division of Professional Regulation and an affidavit of merit or expert medical testimony to begin a medical malpractice lawsuit. These documents state that the plaintiffs have legal grounds to sue a healthcare provider, which consist of the following:

• The medical practitioner owed a professional duty to the patient.

• The medical practitioner breached the standard of care.

• The patient’s injury was caused by the healthcare provider’s breach.

• The patient sustained financial losses and other damages as a result of the breach.

The affidavit of merit must be signed by those who are competent to provide medical testimony based on the applicable skill and care and have deep familiarity with the field of medicine they are testifying. These include physicians who have been licensed to practice medicine and surgery for the last five years and are currently working in Delaware or within 75 miles of the Delaware capitol. They must also be in the same field as the defendant and have been engaged in similar medical treatment for the last three years. 

In addition, plaintiffs are advised to hire medical malpractice attorneys to help them collect important documents to support their claims. These lawyers handle written communication with the negligent party and their insurance company, employment records or tax returns, photographs and text messages, and medical receipts. 

How Much Can You Sue for Medical Malpractice in Delaware?

According to Delaware legislation, there is no limitation on how much someone can receive compensation or awards for their economic and non-economic damages. However, in medical malpractice claims wherein the defendant is a government entity or its employee, the compensation is limited to $300,000. 

The following factors are considered to calculate the amount victims can obtain:

• Extent and severity of the injuries.

• The short and long-term impact of the injuries.

• The victim’s age.

• Expert testimony.

• The claim’s supporting evidence.

• Predicted future treatment and care.

• Attorney’s fees and other associated expenses throughout claim filing.

Medical malpractice attorneys in Delaware also use the multiplier method to calculate the victim's compensation, which multiplies the economic damages by a number. For instance, if a plaintiff had $20,000 in medical expenses, their attorney could pursue a pain and suffering award for four times the stated amount. 

Types of Damages

Plaintiffs are entitled to receive no-cap compensation for general damages, including disfigurement, mental anguish, and pain and suffering; and special damages, like lost wages, past and future medical bills, and surgical expenses. They are also qualified to secure punitive damages, provided that the injury was due to the healthcare provider's malicious intent or willful misconduct. A sustained injury is not considered malicious if it results from ordinary negligence, including surgery and intended treatment for the wrong patient or wrong organ.

Negligence System

Delaware operates under a modified comparative negligence system. This rule stipulates that the plaintiffs’ compensation will be diminished or lessened if they are proven to be partially at fault for the incident. For instance, an individual who is 50% or less to blame can secure a maximum of $50,000 from the original $100,000 in damages. Meanwhile, those proven to be 51% or more at fault are barred from receiving any damages.   

Methods of Obtaining Compensation

It is required in Delaware for victims and their medical malpractice attorneys to resolve matters, including discussing the case and negotiating settlements, in alternative dispute resolutions before going to court. These arrangements include arbitration, neutral evaluation, and mediation proceedings. However, if both parties do not reach an agreement, plaintiffs can seek compensation through litigation in the Delaware Superior Court.

How Much Does It Cost to Pursue a Medical Malpractice Case in Delaware?

The cost of pursuing a medical malpractice case in Delaware depends on various factors, including how strong the claim is, the severity of sustained damages, the specialty of the defendant, and the medical malpractice attorneys’ fees. 

Most medical malpractice attorneys in Delaware work on a contingency fee basis of 33% of the plaintiff’s awarded compensation. Additionally, according to the Delaware Legislative Act of 2023, Section 6865, the attorney’s cost is limited to 35% of the first $100,000 in damages, 25% of the next $100,000, and 10% of the balance of awarded damages exceeding $200,000. Plaintiffs can pay their attorneys on a per diem basis, or at a daily rate, provided that the compensation is drafted in a written contract when they are retained. Also, the Delaware court may order periodic payments for the award for future care and damages, as well as pain and suffering. 

Claimants must consider other expenses incurred throughout the filing process. These include $100-$500 court costs and those used to copy medical records for hospitals, doctors, and other medical practitioners. Also, hiring an expert witness may be expensive, as they will review documents for up to 30 hours and provide testimonies at pre-trial depositions.  

Legal Resources for Medical Malpractice Victims in Delaware

The following organizations can help low-income individuals and members of minority groups fight for their rights in and out of the courtroom and pursue compensatory damages.

Delaware Volunteer Legal Services Inc.

Delaware Volunteer Legal Services is a nonprofit organization that provides pro-bono legal solutions to low-income individuals and families. It represents those facing civil law issues, from personal injury cases, including medical malpractice, to family disputes and estate planning matters. It also offers medical insurance for volunteers. For more information, contact 302-478-8860.

Delaware’s Victims and Witnesses Assistance Program

Administered by the Delaware Criminal Justice Council, the Victim Center Program by the Delaware State Police responds to the needs of victims in hospitals or crime scenes. It helps them file for emergency financial assistance, provides referrals for social service agencies, and accompanies victims in court. Delawareans can reach out for help at 1-800-842-8461. The program is available at Georgetown, Newark, Wilmington, Millsboro, and New Castle County police stations.  

Community Legal Aid Society Inc.

Since 1946, CLASI has been addressing the legal needs of senior citizens, immigrants, people with disabilities, and low-income families in Delaware. It offers civil legal advocacy for issues like medical negligence, housing discrimination, and domestic violence. For inquiries, visit the New Castle County office at 100 W. 10th St., Suite 801, Wilmington, DE 19801; the Ken County office at 840 Walker Road, Dover, DE 19904; or the Sussex County office at 20151 Office Circle, Georgetown, DE 19947.

Victims’ Compensation Assistance Program

Run by the Delaware Department of Justice Attorney General Kathy Jennings, the Victims’ Compensation Assistance Program alleviates the plaintiffs’ financial burdens by covering related costs throughout their recovery. These include medical bills, lost wages, future costs, and counseling fees. Interested parties can call 302-255-1770 or the Delaware Helpline at 1-800-464-4357 for more details.