Understanding Delaware’s Requirements For Affidavits Of Merit & Expert Testimony In Medical Malpractice Actions

According to Diederich Healthcare, a company operating in the U.S. medical malpractice industry, Delaware has the 3rd largest rate of medical malpractice suits in the country. The data is based on the ratio of suits per 100,000 individuals (residents), which worked out to 35.2. The total payout amount for 2015 was $11.6 million, which may not seem like much unless considered relative to population. 

Delaware has roughly 950,000 residents, while Pennsylvania, which had a rate of only 22.7 totaling $374 million, has a population of 12.7 million. Only Louisiana and Oklahoma had a higher rate than Delaware. The Delaware Board of Medical Licensure and Discipline is actively working, in part with the Federation of State Medical Boards, to generate results and improvement by promoting proper, professional, qualified and safe outcomes in the practice of medicine.

In 2003, in efforts to reduce frivolous suits, the state implemented laws requiring an “affidavit of merit” in order to bring a medical malpractice claim. After the law initially took effect, a 19% reduction in filings occurred. Specifically, the state requires that claims of negligently delivered healthcare are accompanied by an affidavit signed by a party that qualifies as an expert medical witness along with a copy of their curriculum vitae. Current requirements for experts include:

• Possession of a current medical license
• Having either conducted treatment related to the what the defendant had when the alleged breach occurred, or having recently taught about the subject at an academic institution
• Have Board certification in a related field of medicine

This document must state that there is evidence suggesting that the defendant demonstrated negligent care. Complaints received without the necessary affidavit will not be added to the court docket. Unless a rule states to the contrary, affidavits are confidential, thus excluding them from becoming articles of public record. If courts find a reasonable need, they may grant a 60-day extension to file the document, which also extends the court’s time for acting on the claim. Examples may include difficulty in accessing medical records, or an inability to locate a qualified expert. Defendants named in a claim have a period of 20 days to contact the court acknowledging the claim.

Experts are not to discuss details of the claim in future work as an expert in malpractice litigation. The expert must cite a correlation between failures to maintain standards of care, and the injury or death that occurred, unless a medical review panel has acknowledged that a correlation exists already. An expert may not be necessary for the initial filing of claims that involve the following:

• A patient has discovered the existence of a foreign object which was inadvertently left within their body after surgery
• During the treatment, an explosion or fire ensued
• When a surgical procedure conducted was done on the wrong limb, or to the wrong patient