## Medical malpractice claims in Delaware When a doctor, hospital, nurse, or other healthcare provider hurts you by failing to meet the **standard of care** — what a reasonable provider in the same specialty would have done — you may have a medical malpractice claim. These cases are heavily regulated by state law. ### Damages caps in Delaware No cap. ### Certificate of merit / expert affidavit Required (expert opinion). ### Statute of limitations 2 years from injury (3-year repose). ## What you have to prove Every medical malpractice case requires four elements: 1. **Duty** — a doctor-patient relationship (or other provider-patient relationship) 2. **Breach** — the provider deviated from the standard of care 3. **Causation** — the breach actually caused the injury (not just that something went wrong) 4. **Damages** — actual harm — physical injury, additional medical bills, lost wages, pain and suffering Causation is usually the hardest element. Many bad outcomes are not malpractice — bad results happen even with good care. Conversely, malpractice that doesn't worsen the outcome (because the patient would have died from the underlying disease anyway) generally fails on causation. ## Common malpractice scenarios - **Misdiagnosis or delayed diagnosis** — particularly cancer, heart attack, stroke, infections - **Surgical errors** — wrong site, wrong procedure, retained instruments, anesthesia errors - **Birth injuries** — failure to monitor, delayed C-section, oxygen deprivation - **Medication errors** — wrong drug, wrong dose, dangerous combinations, missed allergies - **Failure to obtain informed consent** - **Hospital-acquired infections** (some states) - **Nursing home neglect** (often analyzed under different statutes) ## The expert witness problem Medical-malpractice cases all but require a qualified medical expert who's willing to testify against another physician. Finding one is harder than it sounds: - The expert usually must be in the same specialty as the defendant - Many states require active practice (or very recent practice) by the expert - Reputational and professional pressure discourages doctors from criticizing colleagues - Expert fees run $500-$1,500/hour — a single case can require $20,000-$100,000 in expert costs Plaintiff-side malpractice law firms typically have established expert networks and pre-screen cases hard before accepting them. ## Pre-suit panels and notice requirements Many states require some pre-litigation step: - **Medical review panels** (LA, IN, NM, etc.) — independent panel reviews and issues an advisory opinion BEFORE suit can be filed - **Pre-suit notice** (FL, TX, GA, others) — written notice to the provider weeks/months before filing - **Certificates of merit** — sworn statement (sometimes from an expert) that the case has merit - **Mandatory mediation** — required attempt to settle before trial Missing any of these is fatal in most jurisdictions. ## Why these cases are hard to win - Juries trust doctors and are skeptical of plaintiffs - Defense bar is well-funded by malpractice insurers - Causation is often genuinely uncertain in complex medical cases - Damages caps limit recovery, which limits attorney willingness to take cases - Procedural traps (expert affidavit timing, panel rulings) defeat many cases before merits are ever reached ## What you should do If you suspect malpractice in Delaware: get all your medical records (request in writing — providers must comply under HIPAA), keep a journal of symptoms and treatment, and consult a medical-malpractice firm for a free case review. Most med-mal attorneys work on contingency and are very selective about which cases they take. Don't talk to risk management or sign anything from the provider before consulting a lawyer. --- *This guide is general information about Delaware law as of early 2026 and is not legal advice. Med-mal procedural and damages-cap law is heavily contested and frequently amended (FL 2017 strike-down, IA 2023 caps, NM 2021 reforms, CA AB 35 2022, NV 2023 cap increase). Talk to a licensed Delaware medical-malpractice attorney about your specific case.*