Delaware Medical Malpractice Laws

There is a certain level of trust that a patient places within their healthcare provider that is hard to duplicate. Patients allow their healthcare providers to see their medical history, learn about their current and ongoing physical ailments and perform procedures that often require them to put their life in the hands of their physician. When this level of trust is severed due to medical malpractice, it can be difficult to know what steps need to be taken in order to seek a legal remedy that is just.

If you are seeking damages for a claim of medical malpractice, time is of the essence since the law in your state has created finite period of time in which you are permitted to bring a claim.

In addition, the law in Delaware has put into place a myriad of steps that need to be taken before you can even get your case started. To help, this page was created to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Delaware; however, the best course of action to take if you are considering doing so it so consult with an experienced medical malpractice attorney licensed in Delaware.

Suing for Medical Malpractice in Delaware

If you were injured due to the negligence of a health care provider, you may be in a position to file a medical malpractice lawsuit. The law in Delaware places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Delaware allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. However, if the case does advance to trial and you are successful in proving your case and receive an award of damages as a result, unlike many other states, the law in Delaware does not cap those damages. Timing is everything when filing a medical malpractice claim in Delaware as the law places a statute of limitations on how long you may wait to bring your claim.

How long do I have to file a medical malpractice case in Delaware?

In order to ensure that medical malpractice claims are brought within a reasonable amount of time, the law in Delaware requires that you file your claim of medical malpractice within two years from the act or omission that gave rise to your injury. [1] However, if your injury could not have been reasonably discovered within the two year period, the statute of limitations will be extended to three years from the date that the injury occurred within six months from the date of discovery. [2] However, at no time may a medical malpractice claim be brought later than three years after the date on which the medical error was committed.

The logic behind extending the time period for which a claim may be brought beyond the standard two-year period is that some injuries are not easily discoverable. For example, during a surgical procedure, it is possible that a member of the surgical staff accidentally left a surgical tool in your body and the tool was not removed prior to completing the surgery. In this instance, it is unlikely you would know that the foreign object is in your body until symptoms appeared and those symptoms have the potential to take months to years to appear. Penalizing you for not knowing such a dangerous error was made is not just and for that reason the discovery rule was implemented by Delaware lawmakers. However, if you wish to implement the discovery rule, the burden is on you to prove that you did not, and could not, have reasonably discovered the injury within the standard two-year window of time.

Beyond the standard two-year and discovery rule statute of limitations, the law in Delaware allows you to “toll” the statute of limitations for an additional 90 days by sending a Notice of Intent to investigate to each potential defendant or defendants by certified mail, return receipt requested, at the defendant’s regular place of business. The notice must state the name of the potential defendant or defendants, your name and give a brief description of the issue being investigated by your legal counsel. The 90 day time period runs from the last day of the applicable statute of limitations; standard two year or the discovery exception. [3]

If you file your medical malpractice lawsuit after the applicable statute of limitations have expired, it is likely that your case will be dismissed and you will be left without a legal recourse for the injury you incurred as a result of medical negligence.

In Delaware Medical Malpractice Cases, Who is Responsible?

When most people think of a medical malpractice lawsuit, they think of an injured patient bringing a lawsuit against an individual, usually a doctor, due to a mistake the doctor made. While that is not an inaccurate description of a medical malpractice claim, there are many more people, and even organizations, in the medical profession that can be held responsible for the injury or death of a patient than simply a doctor.

In Delaware, a medical malpractice lawsuit is able to be brought against a “health care provider.” The law in Delaware considers a health care provider to be a person, corporation, facility or institution licensed by the state of Delaware to provide health-care or professional services or any officers, employees or agents thereof acting within the scope of their employment. [4]

What if I am partially to blame? Can I Still Recover Money for Delaware Medical Malpractice?

Delaware, along with 32 other states recognizes the doctrine of modified comparative fault. The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Delaware is one of 22 states (Connecticut, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming) that follow a 51% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 50% or less. [5]

In other words, if you wish to recover a monetary award for your injury, you must not have contributed more to the injury that the health care provider that you are suing.

For example, imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and food that was against the doctor’s instructions that you consumed while on the medication. The court ultimately finds that the doctor never should have prescribed that specific type of medication due to your allergy and assigns the defendant 50% of the blame while assigning 50% of the blame to you for not following the doctor’s instructions when you consumed food that was not permitted while on the medication. Since you were assigned 50% of the blame, you would be able to recover a portion of damages because you were not found to have been 51% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $50,000 after the apportioned 50% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why Delaware decided to adopt a modified system.

Are there medical malpractice recovery caps in Delaware?

Upon the conclusion of a successful medical malpractice claim, a monetary award, known as damages, will be awarded to you by the court. The law in Delaware has established different types of damage awards that you may receive:

Compensatory Damages are awarded for the purpose of helping to put a person back in the position which existed before their injury occurred. Under the compensatory damages umbrella are two sub-categories; General Damages and Special Damages.

General Damages link the defendant’s conduct with your injury. General damages can include an award for pain and suffering; mental anguish; lowered quality of life; disfigurement and impairment.

Special Damages are damages that compensate you for financial losses suffered as a result of the defendant’s actions. Special damages may come in the form of an award for covering the cost of surgery; lost wages and future earning capacity; past medical expenses and future medical expenses.

Punitive Damages do not compensate you for your injury. Instead, punitive damages are intended to punish the defendant and deter future behavior similar to that of the defendant. For punitive damages to be awarded, you must prove that the defendant’s conduct was willful, wanton, and malicious. [6]

The law in Delaware does not cap the amount of damages that you may receive in a medical malpractice action.

Expert witness reporting and testimony

An expert witness is a person who is a specialist in a subject who may present their expert opinion without having been a witness to any occurrence relating to the claim being brought before the court.

The testimony of an expert witness is of utmost importance in Delaware because in order to have a successful outcome, you must prove:

• There was a breach of the standard of care owed by the physician by an act or omission and that caused the plaintiff’s injury; and
• The breach of the requisite standard of care was the proximate cause of the injury

The law in Delaware requires the use of expert testimony even before your case reaches the trial stage of litigation. To begin your lawsuit you must file, in addition to a Complaint document, an Affidavit of Merit. [7]

An Affidavit of Merit must be signed by an expert witness and must state that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant you have named in the lawsuit. This means that the expert believes that the applicable standard of care was breached by the named defendants and that the breach was the proximate cause of your injury.

The law in Delaware considers a witness to be an expert if the person is familiar with the degree of skill ordinarily employed in the field of medicine on which they will testify. [8] In addition, the expert must be licensed to practice medicine as of the date of the affidavit as well as in the three years immediately preceding the negligent act and have been engaged in the treatment of patients or in the academic side of medicine in the same or similar field of medicine as the defendant. [9]

Are some parties immune from medical negligence cases?

The law in Delaware states that municipalities, towns, cities, and counties – as well as their employees – are immune from liability. [10] However, if an employee of the government acted outside the scope of employment when causing your injury or behaved in such a way that can be deemed to be willful and wanton, they may be held liable in a medical malpractice action. [11] In this scenario, any award of damages would be capped at $300,000.

Settling medical malpractice cases in Delaware

The law in Delaware requires the use of alternative dispute resolution prior to the case reaching the trial stage of litigation. [12] The method may come in the form of mediation, arbitration or neutral assessment/neutral evaluation. If the involved parties are unable to come to an agreement regarding the method of alternative dispute resolution, the court will mandate that the case be heard by a mediator.

Mediation involves all parties, including at least one attorney for each side and an insurance adjustor with the authority to settle the case. The involved parties may agree on a mediator from the court’s approved list. The mediation session itself is informal and lasts up to four hours. During the session, the chosen mediator will attempt to assist both sides in understanding the issues in the case, encouraging a discussion and ultimately a settlement. If at the end of the session a settlement is unable to be reached, the session will conclude and the case will move forward to trial.

Arbitration is a hearing where each party appears, all witnesses are heard, and testimony is under oath. Once each side has made their case to an impartial arbitrator, the arbitrator will make a decision based on law to provide a resolution to the dispute. The arbitrator’s decision is not binding unless both sides agree in writing to a binding decision.

A neutral assessment or neutral evaluation is where an independent and neutral third party hears the arguments of both sides and evaluates the chance of success for each side should the case proceed to trial. Settlement is encouraged during the process of evaluation.

The law in Delaware also mandates the use of malpractice review panels. [13] After reviewing the evidence and facts of the case, the review panel will advise as to whether or not the named defendants failed to comply with the requisite standard of care. [14]

Litigating medical negligence cases in Delaware

A claim for medical malpractice in Delaware begins with the filing of a complaint. The complaint must specifically describe the alleged malpractice that occurred and also designate expert witnesses who will testify on your behalf.

In most cases, after a defendant receives the complaint from the plaintiff, a claim for medical malpractice is settled prior to the lawsuit going to trial. However, in situations where a settlement cannot be reached, the case will proceed to the litigation stage.

Initiating the Case

If the parties involved in a medical malpractice lawsuit are unable to reach a settlement agreement, the case will proceed to trial.

In Delaware, a civil action first begins with the filing of the complaint with the appropriate court. Delaware’s Superior Court is the primary trial court where most common law matters are heard and no monetary maximum exists.

The complaint is a document that names the parties involved parties, states the reason for the lawsuit, and asks for monetary relief from the court.

Each complaint must be accompanied with a standard set of interrogatories. [15] The interrogatories include a set of seven questions that focus on the medical treatment that you received.

Additionally, the law in Delaware requires you to file a document called an “Affidavit of Merit” along with your complaint. The Affidavit of Merit must be signed by an expert witness and must state that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant you have named in the lawsuit. This means that the expert believes that the applicable standard of care was breached by the named defendants and that the breach was the proximate cause of your injury. [16]

After the complaint is properly filed with the court, the litigation process has begun from a statute of limitations standpoint. The complaint must then be personally served upon the defendant(s) by the sheriff, special process server, or certified mail. Once the defendant(s) is served, he has twenty (20) days to file an answer at the same court. [17]

Preparing for Litigation

After the complaint and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is the formal process of exchanging information between parties about the witnesses and evidence that will be presented at trial.

The discovery process can include requests for the production of medical records, physician notes, the taking of depositions, interrogatories, and requests for admission. Essentially, the discovery process can include almost anything that can help bolster a legal argument.

A deposition is witness’s sworn out-of-court testimony used to gather information as part of the discovery process and, in limited circumstances, may be used at trial. [18] In most cases, the plaintiff as well as all named defendants may be deposed prior to trial in addition to certain witnesses and, in the case of a medical malpractice claim, doctors. The actual deposition involves a question and answer session between opposing counsel and the involved parties. Attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary.

Interrogatories are a set of written questions which set forth the facts of your claims. The questions are served upon the other side and they must be answered under oath.

In a medical malpractice case, it is possible that you will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

The parties involved in a medical malpractice claim are allowed to agree to a settlement at any point prior to the beginning of a trial. The litigation process is lengthy and expensive and because of this, many cases settle prior to going to trial. Settlement can take place during mandated alternative dispute resolution sessions. However, if the parties are unable to come to a settlement agreement during mediation, arbitration or neutral evaluation, trial is likely the next step in the litigation process.

Trial

If the parties are unable to reach a settlement at any point, the case will go to trial.

During a trial all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Delaware: a judge or a jury.

To choose a jury, a procedure known as “voir dire” is conducted whereby each side’s attorney asks potential jurors questions in order to determine what biases the panel members may have in favor or against the case being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. Once each side finishes announcing the parties they wish to have removed, the just will be impaneled.

In Delaware, a person is considered to be qualified to be a juror unless they are:

• Not citizens of the United States
• Less than 18 years of age
• Not a resident of the county of prospective jury service
• Unable to read, speak and understand the English language
• Incapable of rendering satisfactory jury service
• A convicted felon who have not had their civil rights restored [19]

After the jury selection is completed, opening statements will begin. During opening statements, each side will present what they believe the evidence will show during the course of the trial process.

From there, the plaintiff will begin to argue their case. Witnesses will likely be called and expert testimony will be used to attempt to show that the physician was negligent and that the negligence was the cause of the plaintiff’s injury.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their case. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury and likely that the plaintiff significantly contributed to their own injury.

Once both sides have argued their cases, closing arguments will take place and jury instructions will then be given by the judge to the jury. The jury is then free to deliberate and come back with a finding.

Appeal

It is not uncommon for the losing side in a medical malpractice case to appeal a decision from the lower court to the State Supreme Court. An appeal allows the higher court to review the actions of a lower court in order to determine if the law was appropriately applied.

If either party wishes to appeal a decision rendered by a lower court, the appeal must be filed within thirty (30) days of the order. [20]

How to find the best Delaware Medical Malpractice Lawyer for your case

If you or a loved one has had the unfortunate experience of being injured as a result of medical malpractice, it is likely that the last thing you want to do is deal with the intricacies and nuances associated with filing a medical malpractice lawsuit. Hiring strong legal representation can help to take your mind off of the legalese so that you can focus on healing and moving forward with your life.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and monetary losses you have likely endured. To enhance the chances that you will be compensated, it is important that you find legal counsel that fits your needs. Asking the right questions during the interview process can mean the difference between your case progressing smoothly versus having a disastrous outcome.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Take your time and interview more than one firm so that you can get a good sense of what each firm brings to the table.

It is important to ask an attorney or law firm their level of experience in the world of law centered on medical malpractice. In law, experience is usually a plus. You will want a seasoned attorney or firm that has seen many different scenarios that can come into play in a medical malpractice case. You may also want to ask how many cases they have handled that are similar to yours. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be in addition to what their success rate has been.

Medical malpractice cases may be paid for in one of two ways; an hourly rate or a contingency fee. Under an hourly agreement, an attorney will charge you an agreed upon rate per hour worked on your case. Meanwhile, a contingency fee agreement does not require an hourly payment. Instead, the attorney will be paid a percentage of the damages you are ultimately awarded by the court. The law in Delaware limits the amount an attorney may collect under a contingency fee agreement to 35% of the first $100,000 in damages, 25% of the next $100,000, and 10% of any remaining award. [21] Make sure to ask prospective legal representation about their fee and what you can expect to pay.

You should also ask your potential attorney or firm how they communicate with their clients. Communication is incredibly important. However, many people communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Finding out early that the attorney-client relationship is not going to work is incredibly important since changing attorneys or firms in the middle of litigation is a time consuming and arduous process.

Some notable medical malpractice law decisions from Delaware

These cases represent awards to plaintiffs in medical malpractice cases in Delaware. It is important to note results in the past are no guarantee of results in subsequent cases with similar circumstances.

Cuff v.Keagle

The plaintiff, Finis Cuff, suffered from a stroke after his doctor failed to properly treat his high blood pressure.

The plaintiff went to see his doctor, the defendant Dr. Douglas L. Keagle,, when his blood pressure had a reading of 184 over 94. Upon being evaluated by the defendant, he was told to continue taking his blood pressure medication.

A month after his initial consult with the defendant, the plaintiff returned due to headaches, lightheadedness and a blood pressure reading of 200 over 80. At that time, the defendant increased the plaintiff’s blood pressure medication and advised him to return in four weeks.

Two days after the second evaluation, the plaintiff suffered a large hypertensive stroke.

The plaintiff filed a medical malpractice lawsuit against the defendant doctor as well as Mercy Fitzgerald Hospital, based upon the claim that as a direct proximate result of the defendant’s negligence, the plaintiff’s elevated blood pressure was ignored and allowed to progress to hypertensive stroke. As a result of the stroke, the plaintiff lost the use of both legs and of his right arm.

The jury ultimately found the doctor to be 61% negligent while the plaintiff was found to be 39% negligent. The plaintiff was awarded $350,000 for future loss of earnings, $3.5 million for pain and suffering and $2.6 million for future medical expenses. The estate of the plaintiff’s wife was awarded $950,000.

Houghton v. Shapira

The plaintiff was admitted to Christiana Hospital after falling off of a ladder which left him with three fractured ribs. After being evaluated, the initial plan was to treat the plaintiff’s pain and discharge him a few days later.

The defendant, Dr. Shapira, treated the plaintiff’s pain with an On-Q catheter made by the I-Flow Corporation. Each On-Q catheter is surgically inserted over the ribs for the purposes of placing numbing medication over the injured ribs. The defendant inserted two On-Q catheters under the plaintiff’s skin and over his ribs. A day later, one of the On-Q catheters came out and the defendant then reinserted them. However, this time, one catheter inserted by the defendant went down and through the plaintiff’s chest wall and perforated some of his internal organs. The defendant did not realize this had occurred and the failure to notice resulted in the plaintiff having to undergo several lifesaving surgeries.

The plaintiff filed a medical malpractice lawsuit based upon the claim that the defendant negligently failed to obtain informed consent before performing the On-Q procedure and that the procedure was negligently performed. The lawsuit also named Christiana Care Health Services, Incas a defendant since they were the defendant’s agent at the time the incident occurred.

The jury ultimately agreed with the plaintiff and found both Dr. Shapira (65%) and the hospital (35%) liable. The jury awarded $3.75 million in damages to the plaintiff and $650,000 to his wife for loss of consortium.

The lower court’s ruling was appealed and the Delaware Supreme Court affirmed the entire judgment in favor of the plaintiff.

Footnotes

[1] 18. Del C. § 6856

[2] 18. Del C. § 6856 (1)

[3] 18. Del C. § 6856 (4)

[4] 18. Del C. § 6801 (5)

[5] 1 Del C. § 8132

[6] 18. Del C. § 6855

[7] 18. Del C. § 6853

[8] 18. Del C. § 6854

[9] 18. Del C. § 6853(c)

[10] Del. Code Ann. tit. 10, § 4011

[11] Del. Code Ann. tit. 10, § 4011

[12] Superior Court Rule 16

[13] Del. Code Ann. tit. 18, § 6803

[14] Del. Code Ann. tit. 18, § 6811

[15] Super. Ct. Civ. R. 3(h)

[16] 18. Del C. § 6853

[17] Super. Ct. Civ. R. 12(a)

[18] Delaware Rules of Civil Procedure Rule 30

[19] 10 Del. C. 4507

[20] Rules of the Supreme Court Rule 6

[21] Del. Code Ann. tit. 18, § 6865