Medical Malpractice in Delaware

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Statute of Limitations: 2 Years

Discovery: 1 Year from Discovery

Liability Rules: Modified Comparative Negligence

Limits: None

What You Should Know

Below we cover a general outline of what you need to know in the case of filing a medical malpractice in the state of Delaware. A medical malpractice or medical liability case is a civil claim filed by a patient in pain or who has been injured by cause of a physician or health care provider due to negligence or omission.

Statute of Limitations & Discovery Rule

The Statute of Limitations to file a medical malpractice case in Delaware is two years from the date of reasonable discovery, however you cannot simply file a claim and be on your way. Read onto ‘Expert Opinion’ below for more logistical guidance on filing a claim in Delaware. Delaware also has a discovery rule in place. Delaware’s discovery rule allows a patient an additional year to file a claim upon discovering they have been neglected in some way by their physician or
healthcare provider. In other words, if you had surgery in January of 2016, but didn’t find out about a pain or injury due to the surgery until 2018, you have until January of 2019 to file.

Below we cover what must first be established or able to be proven in order to file a claim:

  • The physician or health care provider owed the given patient any ‘duty’. For example, further treatment, alternate care, guidance, etc.
  • The standard of care for the given illness or ailment failed to be met. Each surgery or treatment has a set of conditions, or standards, that must be met in order to be considered acceptable, or at the most basic level, complete.
  • There is a compensable injury. Unfortunately not all injuries are compensable. A worst case scenario for medical malpractice is fatality. However, if there are reconcilable damage to the patient that can be rectified to some degree, that will help in filing a claim.
  • Lastly, not only does it have to be proven that the standard of care was breached, but also that it was the cause of harm or damage to the patient. For example, if indeed a doctor did neglect the standard of care for a given treatment, but that was not the cause of harm or injury to the patient, it may not be enough to open a case.

Expert Opinion

In almost all states there needs to be an expert on the particular treatment that did not meet standard of care in order to prove so. In other words, there needs to be someone that specializes in the treatment that was neglected in some manner in order to prove that it was the fault of the treating physician or health care provider. The expert cannot simply be someone that is knowledgeable on the matter, though. They must be an active or practicing professional.

In Delaware, this is not only required, but it is required upon the date that you choose to file a medical malpractice case. This third-party opinion and input is required so that it can be determined if the pain or harm is clearly and entirely at the fault of the treating physician or health care provider.


As you can see, there is a lot of information necessary to understand before even filing a medical malpractice case. It is, no doubt, a daunting endeavor; however, receiving just compensation or rectifying damage for the sake of you or your family’s health should be a top priority. It is best to seek an experienced team of attorneys to assist in filing a civil claim such as medical malpractice.

How Can We Help You?

If you or a loved one have been injured in the state of Delaware, contact us at 432.570.1919 or email us using the form below for your free, no-obligation consultation. The Buckingham Barrera Law Firm has helped thousands of people in multiple states get the compensation they deserve for their injuries.