Delaware Medical Malpractice Law

Medical malpractice claims in Delaware are subject to a 2-year statute of limitations (Del. Code § 6856). In contrast to most other states, Delaware does not follow the "discovery rule" for determining when the limitation period begins. This means that Delaware's 2-year deadline starts on the date that the alleged medical malpractice occurs (not when it was reasonably discovered).

In circumstances where the medical error could not possibly have been discovered within 2 years, Delaware allows the limitations period to be extended by 1 year (Del. Code § 6856(1)). 

This effectively means that the absolute maximum limitation period for any malpractice claim is 3 years. This makes Delaware's statute of limitations on malpractice claims one of the toughest in the country. If a claim is not filed within 3 years from the date of the injury, it is completely barred, regardless of whether the malpractice could have been discovered or not. 

This can have some harsh results. Delaware's highest court has repeatedly ruled that even if an injury from malpractice is "inherently unknowable" or could not possibly have been discovered within the 2 or 3 year limits, the statute of limitations still applies and the claim is barred if not filed within 3 years. Cole v Delaware League for Planned Parenthood, 530 A.2d 1119 (Del 1980).

There are only two limited exceptions to this 3-year max limitation on Delaware malpractice claims: (1) fraud; and (2) minority. The fraud exception applies if it can be shown that the doctor intentionally concealed the malpractice or prevented the plaintiff from discovering it (e.g., destroying medical records; lying about what happened, etc.). 

In this situation the limitations period can be "tolled" until the fraudulent concealment is overcome. The minority exception is applicable in cases where plaintiff is a child at the time of the injury.

In order to file a medical malpractice lawsuit in Delaware, the plaintiff must first get an "affidavit of merit" from a qualified expert (Del. Code § 6853). If a malpractice lawsuit is not supported by an affidavit of merit it will be automatically dismissed.

The affidavit of merit is basically a written statement from a qualified expert witness (i.e., another doctor of the same specialty as the defendant) which certifies that the plaintiff has "reasonable grounds" for his or her malpractice claims. This means that just to file a malpractice lawsuit in Delaware, a plaintiff first has to get another doctor to review the case and confirm that the doctors were negligent.

This procedural requirement is designed to prevent the filing of frivolous medical malpractice lawsuits. Most states have enacted very similar requirements for medical malpractice claims.

Pre-Suit Notice Requirement in Delaware

In order to bring a medical malpractice lawsuit in Delaware, the patient must first provide the healthcare provider with notice of the claim and an opportunity to settle the matter before filing a lawsuit. This is known as the pre-suit notice requirement.

This notice may extend the statute of limitations.  Under the Delaware’s Medical Negligence Act (18 Del. C. §6801, et seq.), the filing of proper notice allows a plaintiff to toll the statute of limitations for up to 90 days.  The Notice of Intent must go to every potential defendant by certified mail with a return receipt requested, to the defendant’s regular place of business. 

The Notice of Intent must contain: (1) the name of the potential defendants; (2) the potential plaintiffs; and (3) a brief description of the allegations of negligence plaintiff's medical malpractice lawyer is investigating. 

Many states have enacted limits on the maximum amount of damages that can be awarded in malpractice lawsuits. However, Delaware has not adopted any damage caps. This is no limit on the amount of damages that can be awarded to plaintiffs in Delaware medical malpractice cases.

Informed Consent Law in Delaware

In Delaware, informed consent is a legal requirement for medical procedures and treatments. It means that a patient must be fully informed of the potential risks, benefits, and alternatives to a procedure or treatment, and must provide their voluntary agreement to proceed before it can be performed. 

The informed consent process is intended to protect a patient's autonomy and ensure that they make informed decisions about their own health care. The laws governing informed consent in Delaware, unlike most stats, can be found in the state's medical practice act. 

Section 6801(6) of Title 18 defines “informed consent” as the consent a patient gives once the patient has been informed of the “risks and alternatives to treatment or diagnosis which a reasonable patient would consider material to the decision whether to undergo the treatment or diagnosis.  The District Court of Delaware has said that the purpose of Delaware's informed consent law is to ensure that “every patient has the right and responsibility to determine whether to take the risk of the [the treatment]. Doctors can make recommendations and the patient is free to accept or reject a doctor's recommendation.  But the patient has to be given the information to make the choice. 

Under the statute - § 6852 Informed Consent - the healthcare provider must explain the nature and purpose of the procedure or treatment, its potential risks and benefits, any alternatives to the procedure or treatment, and any other information that a reasonable person would want to know in order to make an informed decision.

In some cases, informed consent may be obtained through a written document that the patient signs. However, informed consent is not just a formality – it is an ongoing process that should be based on a conversation between the patient and the healthcare provider. The patient must be given an opportunity to ask questions, express concerns, and receive answers before making a decision about whether to proceed with the procedure or treatment.