Delaware medical malpractice cases follow a defined path, and one requirement shapes everything: no case can be filed without a sworn affidavit of merit from a qualified medical expert (18 Del. C. § 6853). Here is how the process actually works, step by step.

Step 1: Records and Expert Review

We obtain your complete medical records – you have a right to them – and have them reviewed by physicians in the relevant specialty. This answers the two questions every case needs: was the standard of care breached, and did the breach cause the harm. Most inquiries end here honestly; strong cases proceed.

Step 2: The Affidavit of Merit

Delaware requires the complaint to be filed with an expert’s sworn affidavit – with CV attached – stating reasonable grounds to believe each defendant was negligent (18 Del. C. § 6853). Limited exceptions exist (foreign objects left in the body, wrong-patient or wrong-site surgery). A single 60-day extension is available for good cause if requested before the deadline.

Step 3: Deadlines

Generally 2 years from the injury; where the injury could not reasonably have been discovered, up to 3 years from when it occurred (18 Del. C. § 6856). Because expert review takes months, the practical deadline for calling a lawyer is much earlier than the legal one.

Step 4: Discovery and Experts

Both sides exchange records, take depositions, and disclose expert opinions. Expert testimony is required to prove negligence (18 Del. C. § 6853(e)) – these cases are won or lost on expert quality and preparation.

Step 5: Resolution

Many cases resolve through negotiation or mediation once the evidence is developed; the rest go to trial. Delaware does not cap compensatory damages, and punitive damages require malicious or wilful/wanton conduct (18 Del. C. § 6855).

Related: Medical Malpractice, Misdiagnosis, Hospital Negligence.

Process FAQs

How long does a Delaware med mal case take?

Realistically 1.5 to 3+ years from filing, driven by expert schedules and court calendars. The records-review phase before filing adds months – another reason to start early.

What does it cost to bring a malpractice case?

We advance the case costs – expert fees are substantial in these cases – and work on contingency. You pay nothing unless we recover.

Will my case settle or go to trial?

Most resolve before trial, but Delaware malpractice defendants try more cases than ordinary injury defendants. We prepare every case to be tried – that preparation is what produces settlements.

Wondering whether you have a case? The process starts with one call: (302) 297-7775. Free consultation.