Delaware medical malpractice law
In Delaware, you generally have 2 years to file a medical malpractice claim from the date of the injury. See the damage caps and expert rules for 2026.
Sources checked
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Your deadline: 2 years from the injury
Delaware rules at a glance
Work out your deadline- Filing deadline
- 2 years from the injury
- Damage caps
- No cap
- Before you file
- An expert's sign-off on the claim
- Shared fault
- Modified comparative (51% bar)
Full Delaware law guidedeadlines, caps, children, experts and sources
Example: treatment and discovery six months ago
- TreatmentMay 7, 2026
- Likely deadlineMay 7, 2028
- Outer limitMay 7, 2029
- The clock startsOn the day of the injury
- Time to start a claim2 yearsMiss it and the claim is usually lost.
- At the very most3 yearsafter the treatment, with a few exceptions
- Pain and sufferingNo cap
- All damages togetherNo overall cap
The rules in Delaware
Filing deadline
2 years
Counted from the injury. File within 2 years of the date the injury occurred. If the injury could not reasonably have been discovered within those 2 years, you have until 3 years after it occurred.
Discovery rule
Applies
Limited: an injury that was unknown and undiscoverable during the first 2 years can still be sued on within 3 years of when it occurred.
Outer limit
3 years
3 years from the date of injury is the absolute limit, except for child sexual abuse claims and the rule for young children.
Del. Code tit. 18, § 6856(1)
Children
Different clock
A child under 6 has until the later of the normal deadline or the sixth birthday.
Affidavit of merit
Required
The complaint must come with a sealed affidavit of merit for each defendant, signed by a qualified expert, plus the expert's CV. The court may allow one 60-day extension for good cause.
Del. Code tit. 18, § 6853
Notice before suing
Not required
Not required, but a Notice of Intent to investigate sent by certified mail to each potential defendant extends the deadline by up to 90 days.
Del. Code tit. 18, § 6856(4)
Shared fault
Modified comparative (51% bar)
Modified comparative fault: barred above 50% of the fault
Experts
Expert evidence
The affidavit expert must be licensed, have treated patients or taught in the same or a similar field in the 3 years before the act, and be board certified in that field if the defendant is.
Delaware's Health-Care Negligence Insurance and Litigation Act (Del. Code tit. 18, ch. 68) governs these cases.
Sources
- Delaware Code Title 18, Chapter 68, §§ 6853, 6856, Delaware General Assembly
- State Enactments of Selected Medical Liability Reforms (as of 8/27/2026), Medical Professional Liability Association
- Contributory Negligence/Comparative Fault Laws in All 50 States (updated 6/10/2026), Matthiesen, Wickert & Lehrer, S.C.
- Medical Liability/Malpractice Merit Affidavits and Expert Witnesses, National Conference of State Legislatures
Other states
- Best Medical Malpractice Lawyers in Alabama (2026)
- Best Medical Malpractice Lawyers in Alaska (2026)
- Best Medical Malpractice Lawyers in Arizona (2026)
- Best Medical Malpractice Lawyers in Arkansas (2026)
- Best Medical Malpractice Lawyers in California (2026)
- Best Medical Malpractice Lawyers in Colorado (2026)
- Best Medical Malpractice Lawyers in Connecticut (2026)
- Best Medical Malpractice Lawyers in District of Columbia (2026)
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