Not every bad medical outcome is malpractice. Medicine is uncertain, and even careful providers sometimes have patients who do not improve or who suffer complications. Delaware law focuses on whether the care provided fell below the accepted standard for similar providers in the same circumstances.
The Detailed Answer
Delaware’s Medical Negligence Act, codified at 18 Del. C. §§ 6801 et seq., sets the framework for medical malpractice claims. The statute defines key terms, sets procedural requirements such as the affidavit of merit, and establishes special rules for damages and statutes of limitations.
The Four Elements
- Duty: A provider-patient relationship existed, creating a duty of care.
- Breach of the Standard of Care: The provider’s conduct fell below what a reasonable provider in the same field would do under similar circumstances.
- Causation: The breach caused or substantially contributed to the patient’s injury.
- Damages: The patient suffered actual harm, such as additional medical bills, lost wages, pain and suffering, or wrongful death.
The Standard of Care
The standard of care is what a reasonably prudent provider with similar training and experience would do in similar circumstances. It is not a guarantee of a perfect outcome. Establishing the standard generally requires testimony from a qualified medical professional in the same or similar specialty.
Affidavit of Merit Requirement
Delaware requires that most medical malpractice complaints be accompanied by an affidavit of merit signed by the plaintiff’s attorney and supported by an opinion from a qualified medical professional. This requirement, found in 18 Del. C. § 6853, is intended to screen out unsupported claims at the start of litigation.
Common Categories of Malpractice
- Failure to diagnose or delayed diagnosis of serious conditions
- Surgical errors, including wrong-site surgery and retained instruments
- Medication errors and prescribing mistakes
- Birth injuries
- Anesthesia errors
- Failure to obtain informed consent
What This Means for Your Case
Medical malpractice cases are document-intensive and time-consuming. They require complete medical records, sometimes from multiple providers and facilities, and review by qualified medical professionals to evaluate whether the standard of care was breached and whether that breach caused the harm.
Even where malpractice clearly occurred, the value of a case depends on damages: medical bills, lost income, pain and suffering, and the long-term impact on the patient’s life. Delaware also imposes deadlines that, if missed, can permanently bar a claim regardless of how strong the underlying facts may be.
Related Questions
Q: How long do I have to file a malpractice case in Delaware?
The general deadline is two years from the act of malpractice, with a possible extension to three years in certain circumstances under 18 Del. C. § 6856. See our resource on the medical malpractice statute of limitations.
Q: Can I sue if I signed a consent form?
Possibly. Informed consent requires meaningful disclosure, not just a signed form. See our resource on consent forms and malpractice claims.
Q: Are medical malpractice cases expensive to bring?
They typically require qualified medical review and can be costly to litigate. Most are handled on a contingency fee basis with the firm advancing case costs.
How Standard of Care Is Established
The standard of care in any given Delaware medical malpractice case is established through testimony from a qualified medical professional in the same or similar field. The testifying professional explains what a reasonably prudent provider with similar training would have done in the same circumstances. Reference materials, clinical guidelines, and published medical literature can support the testimony.
The standard is not a counsel of perfection. Medicine often involves judgment calls between reasonable alternatives. A bad outcome from a defensible choice is generally not malpractice, even if a different choice might have produced a better result.
Distinguishing Malpractice From a Bad Outcome
Patients often ask how to tell whether a complication is malpractice or simply an unfortunate but accepted risk. The answer requires medical review of the records, but some signals worth taking seriously include:
- The provider expressing concern, apology, or surprise about what happened
- A delay in diagnosing a condition that was suggested by symptoms or test results
- A complication that the consent form did not mention
- An obvious error like wrong-site surgery or wrong medication
- Records that appear to have been altered or do not match what you recall
Damages in Medical Malpractice Cases
Recoverable damages can include past and future medical expenses, lost wages and earning capacity, pain and suffering, and loss of life’s enjoyment. In wrongful death cases, separate categories apply under Delaware’s wrongful death and survival action statutes. The total value of a case depends heavily on the nature and duration of the harm caused by the malpractice.
When to Talk to a Delaware Medical Malpractice Lawyer
If you believe you or a family member was harmed by substandard medical care, talk with a Delaware medical malpractice attorney as soon as possible. Schuster Jachetti LLP has experience handling medical negligence claims. Learn more about Delaware medical malpractice, affidavits of merit, statute of limitations, and proving a malpractice case.
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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.
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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.