When medical malpractice causes a person’s death in Delaware, the family may have two related claims: a wrongful death action under 10 Del. C. § 3724 for the losses suffered by surviving family members, and a survival action under 10 Del. C. § 3701 for damages the deceased could have recovered, including pain and suffering before death and medical expenses. Both must comply with Delaware’s medical malpractice procedural rules.
Losing a family member to medical negligence is one of the most painful experiences a family can face. Delaware law provides legal pathways for surviving family members to seek accountability and compensation, but the process is governed by specific statutes, deadlines, and proof requirements.
The Detailed Answer
When a death is caused by medical malpractice, Delaware law typically combines the procedural framework of the Medical Negligence Act, 18 Del. C. §§ 6801 et seq., with the substantive remedies available under the wrongful death and survival action statutes.
Wrongful Death Action
Under 10 Del. C. § 3724, certain surviving family members may bring a wrongful death action to recover for their own losses caused by the death. Statutorily defined beneficiaries can include:
- Spouse
- Children, including in some cases adult children
- Parents
- Siblings, depending on circumstances
Recoverable damages may include loss of financial support, loss of services, loss of companionship and consortium, and reasonable funeral expenses, subject to statutory limits.
Survival Action
A survival action under 10 Del. C. § 3701 belongs to the deceased’s estate and recovers damages the deceased could have pursued had he or she lived. These can include conscious pain and suffering before death, medical expenses, and lost earnings between the malpractice and the death.
Procedural Requirements
Wrongful death claims based on medical malpractice generally must satisfy both the medical malpractice procedural rules (including the affidavit of merit) and the wrongful death rules. Statutes of limitations from both frameworks must be honored.
Who Brings the Claim
Wrongful death actions are typically brought on behalf of the eligible beneficiaries. Survival actions are brought by the personal representative of the estate. In many cases, both claims are filed together in the same lawsuit.
What This Means for Your Case
Pursuing a wrongful death claim from medical malpractice involves not only the loss itself but also the ordinary administrative steps of estate administration, possibly the appointment of a personal representative, and the same kind of detailed medical investigation required for any malpractice claim.
Families often have a limited window in which they need to make decisions about an autopsy, evidence preservation, hospital communications, and engagement of counsel. While there is no rush to litigate, getting basic preservation steps in place quickly can be important.
Related Questions
Q: Do we need an autopsy?
Autopsies are not always required, but they can be very helpful in establishing the cause of death and supporting (or refuting) a malpractice claim.
Q: Who can bring the claim?
Wrongful death is brought on behalf of statutorily defined beneficiaries; survival actions are brought by the personal representative of the estate. The two claims are coordinated.
Q: How long do we have?
Both the medical malpractice statute of limitations under 18 Del. C. § 6856 and the wrongful death statute under 10 Del. C. § 3724 set deadlines that should be honored as soon as possible.
Practical Steps After a Suspected Malpractice Death
In the difficult days after a death, certain practical steps can help preserve the option of pursuing a claim later:
- Consider requesting an autopsy, particularly if the cause of death is unclear
- Request complete medical records from the hospital and all involved providers
- Save any printed materials, instructions, or communications from providers
- Note the names of doctors, nurses, and other staff involved
- Keep funeral and final medical bills
- Avoid signing broad releases or settlement agreements presented by providers or insurers
How Wrongful Death and Survival Claims Differ
Wrongful death claims under 10 Del. C. § 3724 compensate surviving family members for their own losses (loss of support, companionship, services, funeral expenses). Survival claims under 10 Del. C. § 3701 belong to the deceased’s estate and recover damages the deceased could have pursued personally (pre-death pain and suffering, medical expenses, lost earnings before death). The two claims are typically pursued together but are conceptually distinct.
The Personal Representative’s Role
A survival action is generally brought by the personal representative of the estate. If a personal representative has not yet been appointed by the Register of Wills, that may be an early step in pursuing the claim. The wrongful death action proceeds on behalf of the statutorily defined beneficiaries.
Coordinating With Estate and Tax Issues
Recoveries from wrongful death and survival claims interact with estate administration and tax considerations. Coordinating with the personal representative, estate counsel, and any beneficiaries early can avoid problems later.
When to Talk to a Delaware Medical Malpractice Lawyer
If a loved one died and you believe medical negligence contributed, contact a Delaware medical malpractice attorney to discuss your options. Schuster Jachetti LLP has experience handling Delaware wrongful death and medical malpractice claims. Learn more about Delaware medical malpractice, the definition of malpractice, statute of limitations, and proving malpractice.
Free Consultation
Free consultation. No fee unless we recover compensation for you.
📞 Call (302) 984-1000
This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.
Have a Question About Your Case?
Get a free, confidential consultation with a Delaware attorney.
📞 Call (302) 984-1000
This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.