Delaware law
Medical Malpractice Laws in Delaware.
Delaware medical malpractice claims are subject to a 2-year statute of limitations from the date of injury, with a 3-year outside limit when the discovery rule applies. The state requires an affidavit of merit from a qualified expert to be filed with the complaint. Delaware does not cap compensatory or punitive damages in medical malpractice cases. The state follows the same modified comparative fault rules as general personal injury.
Last verified: 2026-02-25
State law
Statute of Limitations
Medical malpractice claims must be filed within 2 years from the date of the alleged negligent act. Delaware's standard rule runs from the date of the malpractice, not from when the injury was discovered.
Exceptions
If the injury was unknown and could not have been discovered through reasonable diligence, the claim may be filed up to 3 years from the date of the malpractice. Three years is the absolute cutoff.
When the injured patient is a child under 6 years old, the filing deadline is the later of 2 years from the date of the medical error or the child's 6th birthday.
A plaintiff may toll (pause) the statute of limitations for 90 days by sending a written notice of intent to investigate to each defendant by certified mail, return receipt requested.
State law
Fault & Liability Rules
The same comparative fault rules apply as in general personal injury. If the patient is 51% or more at fault (rare in medical malpractice), they recover nothing.
State law
Damage Caps
Delaware does not cap compensatory damages in medical malpractice cases. You can recover the full amount of damages you are able to prove.
Punitive damages are available with evidence of willful or reckless disregard. Delaware does not impose a statutory cap on punitive damages in medical malpractice cases.
State law
Filing Requirements
The complaint must be accompanied by an affidavit of merit signed by a qualified medical expert stating there are reasonable grounds to believe the defendant committed medical malpractice. The expert's current curriculum vitae must also be included.
The expert signing the affidavit must be licensed to practice medicine and, in the 3 years preceding the alleged negligent act, must have been engaged in treatment of patients or teaching in the same or similar field as the defendant. The expert must be board certified in the same or similar field if the defendant is board certified.
State law
Key Delaware Statutes
Delaware's comprehensive medical malpractice statute governing filing requirements, expert testimony, affidavit of merit obligations, and limitation periods for healthcare negligence claims.
A healthcare provider has a duty to inform the patient of the nature of the proposed treatment, alternative treatments, and material risks. Failure to obtain informed consent can form the basis of a malpractice claim.
State law
Official Sources
Not Legal Advice
This page summarizes publicly available statutes and rules for informational purposes only. It does not constitute legal advice, and no attorney-client relationship is created by viewing this content. Laws change — always verify with the primary source or consult a licensed attorney in Delaware.
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