Delaware Medical Malpractice Laws

Each state has their own set of medical malpractice laws in place, and it is important for patients to understand those laws and how they could affect their case. The following are the basics of the laws in Delaware.

Medical Malpractice in Delaware

Just like in all 50 states, medical malpractice is a serious issue in Delaware. Malpractice cases mean that someone was injured as a result of a medical mistake of some kind. Whether the injury was intentional or accidental, facing malpractice means that some type of medical professional was negligent and that compensation is due to the injured party or his or her loved ones. Do not struggle with an injury alone. Instead, turn to an experienced medical malpractice attorney to ensure the compensation matches the damage.

Understanding How Medical Malpractice Is Defined

Medical malpractice cases are incredibly complex. What may appear to be malpractice to some may not to a personal injury attorney with experience in malpractice court. Understanding what components make up a malpractice lawsuit is the best way to see how malpractice is defined. Each malpractice case that makes its way to court will have four distinct components.

First, there will be some type of association between the accused and the plaintiff that began before the injury. This means that the court will be able to see that the medical professional and the injured were connected in some way before the injury took place.

Second, the court must understand the type of care that should have happened under these circumstances. When a person goes to see a health-care provider, he or she deserves to expect fair and reasonable treatment. This is called the standard of care, and it is what any person seeking medical care should be able to expect, no matter what type of facility he or she goes to.

Third, there needs to be evidence to show that the standard of care was not upheld by the accused. The person the plaintiff is seeking damages from should have followed standard, traditional procedures. Any care that was not up to this reasonable level is considered a breach of the standard of care a patient should expect.

Finally, evidence needs to be able to connect the injury the plaintiff endured to the accused directly. If the evidence is unable to connect the injury to the accused, the case will likely be thrown out of court and not be allowed to be filed again in the future. The evidence proving the injury came from the accused is likely the most important piece of evidence the plaintiff will need to get into court and come out with a favorable outcome.

Types of Evidence that the Court Will Want to See

Any malpractice court in Delaware will want to see many different pieces of evidence. This should include things like:

  • Records showing the plaintiff’s health before the injury
  • Records showing the injury and the health of the plaintiff following the injury
  • Any statements that the plaintiff was able to gather since the injury took place from medical personnel that talks about the injury the plaintiff sustained
  • Videos of the area of injury, ideally surveillance of the area when the injury took place
  • Photographs or videos of the injury itself from when it occurred and updated photos or videos showing how the injury looks now
  • Bills that show the injury has been treated since it took place

Medical Negligence Can Lead to Medical Malpractice

There are times where someone intentionally causes harm to another person, which is considered gross negligence under the law. However, a mistake can also be malpractice. Even if the person struggled with an injury due to an accident, it could still wind up as a malpractice case that requires going in front of a judge or a jury. Just because a health care professional did not mean to injure anyone does not mean that person will be found innocent.

Acts of medical negligence include things like:

  • Allowing a patient to be discharged before the patient was safe to leave
  • Misdiagnosing or treating a patient for an illness that he or she did not have
  • Performing an unnecessary surgical procedure
  • Not paying attention to the symptoms that the plaintiff was describing
  • Turning off any medical alarms that could have helped notify staff if a patient fell into distress
  • Getting partial or improper medical history
  • Not paying attention and dropping medical equipment on a patient, injuring him or her

Filing a Medical Malpractice Lawsuit in Delaware

Two different things need to be filed when it comes time to file a case of malpractice. First, the plaintiff will need to file the actual lawsuit with the court. Second, the plaintiff needs also to file an Affidavit of Merit. This is a document that has been prepared and signed by a qualifying medical professional saying that in his or her professional opinion, there is enough merit to the case to have it looked at more thoroughly. This document needs to explain how the professional is qualified to give an opinion on the matter, as well.

On top of this, the affidavit needs to state that this person believes that the care level was not appropriate for the circumstances and that the action or inaction of the accused is also what led to the injury. This can be a long process at times, making it something that needs to happen early enough to meet the statute of limitations on the case still.

In Delaware, the plaintiff has a total of two years to get the affidavit and case filed in court. This means that once the injury is two years old, the case must be filed. If the injury was not obvious right away, the state allows it to be extended to three years. However, it is a rarity for any case to be heard beyond those time limits.

One exception to the statute of limitations is when a plaintiff sends out an intention letter called a Notice of Intent to Investigate. These letters must be sent to each person that was a part of the injury, and it only buys the plaintiff 90 extra days. Each letter needs to be sent by certified mail, and each must have a return receipt with it. That way, there is proof that the letter was received when the court comes around if that is the outcome.

Get Legal Assistance From The Personal Injury Center Today

Victims of medical malpractice deserve compensation for the injuries and losses they suffer. The effects of medical malpractice can be devastating, whether it’s failed plastic surgery, misdiagnosis, or anything else. If you sustained severe injuries due to medical negligence, you need a lawyer specializing in your case.

We at The Personal Injury Center understand how difficult it is to find someone you can trust. We’re here to assist and refer you to one of Delaware’s most reliable medical malpractice attorneys. Get in touch with us now to evaluate your case.


What Type of Caps Are Put on Delaware Medical Malpractice Cases?

Delaware is one of only a few states that does not apply any type of a cap to medical malpractice cases. The state believes that a plaintiff who can prove an injury in court should get whatever the judge and jury find acceptable as damage compensation in return. A plaintiff has the right to go after many types of compensation. The damages are put into two categories: monetary damages and noneconomic damages. Some of the items that fit into the monetary category include:

  • Bills for any medical necessity relating to the injury, including surgical procedures, prescriptions, and doctor’s visits
  • Equipment that the plaintiff needed to buy or rent to help with recovery
  • Therapy that the plaintiff may now require to help recover, such as physical therapy or speech therapy
  • The money the plaintiff was unable to make due to being injured from the job the plaintiff had when the injury occurred
  • Income that is no longer able to be made because of the injury or if the plaintiff died
  • Future medical procedures, prescriptions, and therapy the plaintiff may need can also be sought during a medical malpractice suit

Noneconomic damages cover different things, including:

  • Money to help reduce the overall pain and suffering that the plaintiff felt due to the injury
  • Loss of consortium, meaning money to cover what the plaintiff is no longer able to provide to his or her household, such as cleaning, childcare, or going out to get groceries
  • Money to cover embarrassment from the injury, such as if the plaintiff was disfigured
  • Loss of quality of life
  • Funeral services if the plaintiff died

If the accused is found guilty, then the judge and jury get to decide what of these damages applies to the injury. Then, they get to work out a figure of compensation that will help with not only the current recovery efforts but also the future shortcomings that are a result of the injury.

Does the Plaintiff Need a Medical Malpractice Lawyer to Go to Court?

A medical malpractice lawyer is not a requirement to go into court. However, not going to court with an experienced lawyer lessens the chances of winning the case or getting the same level of compensation in the end. Most of the medical malpractice cases in the state of Delaware make it to trial. The doctors and insurance companies do not like to settle in most instances. Unless the plaintiff is an experienced medical malpractice lawyer, then going to court without representation is not a good option.

Lawyers bring a lot with them into court when they have experience on their side. This includes:

  • The ability to use verbiage that the court is going to understand
  • A firm understanding of what needs to be filed in court and when
  • A network of professionals who can conduct a thorough investigation as to what happened to cause the plaintiff’s injury
  • Experience speaking with insurance companies in the past, making it easier to discuss a settlement should it opt to do so
  • Being an advocate for the current and future needs of the plaintiff, even if he or she does not even know what the future holds for the care required

Plus, when a plaintiff hires a Delaware medical malpractice lawyer to represent him or her in court, the plaintiff gets to focus solely on healing instead of the day-to-day drama involved in the court.

What to Look for in a Medical Malpractice Lawyer

Finding the right personal injury attorney is not easy for most injured parties. It takes time to whittle down the options until he or she finds someone who truly understands the nuances of the case. However, taking the time to find the perfect law firm or individual lawyer is important. Since most attorneys offer a free consultation to start, the plaintiff should compile a list of questions to ask. That way, the plaintiff can see if any rapport is there to get the process started. Some questions to consider include:

  • What type of experience does the medical malpractice lawyer have with cases similar to what happened to the plaintiff?
  • How much knowledge of the health care field does the attorney have?
  • Does the attorney specialize in medical malpractice or other practice areas?
  • Who will investigate the circumstances surrounding the plaintiff’s injuries, the lawyer or someone on his or her team?
  • Who will be doing the majority of communication with the plaintiff, and how often should that communication occur?
  • By listening to the overview of the case, what does the attorney believe will come of the case? Should it be filed? Would a settlement or victorious trial be possible?
  • Will the attorney travel to nearby areas, such as Wilmington, Newport, or Willow Run, to meet up with the plaintiff, or will the plaintiff have to travel to see the attorney for meetings?

By listening to the answers the attorney provides, a plaintiff can get a really good idea where he or she stands in terms of the injury. While no attorney can guarantee a victory or specific settlement, experience in the medical malpractice field gives him or her a unique ability to have a very solid idea of where things will go.


After suffering an injury at the hands of any health care professional, people deserve compensation to ensure their recovery has the best chance possible. It does not matter if the injury happened at a Newport hospital or a Wilmington doctor’s office. Medical malpractice is not acceptable. When a doctor or member of his or her staff makes a mistake that leads to an injury or death, awarded damages can make healing just a little bit easier. Make sure that any time a medical injury happens, the result is a case that goes into malpractice court, prosecuted by a powerful Delaware medical malpractice lawyer. That way, the chances of getting the appropriate level of compensation are much higher.

Limits on Attorney’s Fees in Delaware Medical Malpractice Cases

The law in Delaware has limitations on the amount an attorney can charge under a contingency fee agreement. Based on the Delaware Code Title 18. Insurance Code § 6865, the claimant’s attorney fees may not go beyond the following schedule: 

  • 35% of the first $100,000 of damages
  • 25% of the next $100,000 of damages
  • 10% of any remaining awarded damages