Statute of Limitations |
Medical Claim Generally:“No action for the recovery of damages upon a claim against a health-care provider for personal injury, including personal injury which results in death, arising out of medical negligence shall be brought after the expiration of 2 years from the date upon which such injury occurred.” However, “in the event of personal injury the occurrence of which, during such period of 2 years, was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured person, such action may be brought prior to the expiration of 3 years from the date upon which such injury occurred, and not thereafter” In addition, a plaintiff may toll this statute for 90 days with a notice of intent to investigate. [DC § 6856] Minors:“A minor under the age of 6 years shall have until the latter of time for bringing such an action as provided for hereinabove or until the minor’s 6th birthday in which to bring an action.” [DC § 6856] Wrongful death:There are no specific provisions on wrongful death |
Damage Caps |
Delaware currently has no attorney fee caps |
Attorney Fee Caps |
“The amount of the claimant’s attorneys’ fees may not exceed the amounts in the following schedule: (1) 35% of the first $100,000 of damages; (2) 25% of the next $100,000 of damages; (3) 10% of the balance of any awarded damages.” [DC § 6865] |
Pre-suit Requirements |
Pre-suit notice is required, and an affidavit of merit must accompany the complaint. [DC § 6853] |
Expert Qualifications |
“An expert signing an affidavit of merit shall be licensed to practice medicine as of the date of the affidavit; and in the 3 years immediately preceding the alleged negligent act has been engaged in the treatment of patients and/or in the teaching/academic side of medicine in the same or similar field of medicine as the defendant or defendants, and the expert shall be Board certified in the same or similar field of medicine if the defendant or defendants is Board certified.” [DC § 6853] |
Negligent Credentialing Claims |
Delaware has not definitively established a negligent credentialing cause of action. [Palmer v. Christiana Care Health Services, Inc. (2021)] |
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