Delaware Medical Malpractice Lawyers
Our attorneys are available for consultation in medical malpractice cases occurring in the State of Delaware. We are available for consultation in our law offices in Wilmington, Dover, Dagsboro, and Bethany Beach.
We also make visits to local hospitals including Christiana Hospital, Wilmington Hospital, St. Francis Hospital, Kent General Hospital, Nanticoke Hospital, and Beebe Medical Center. In addition, we meet clients in area inpatient rehabilitation centers, hospitals in surrounding states, and we are available for home visits as well.
In these ways, our attorneys cover the entire State of Delaware for medical malpractice cases.
What are common injuries in medical negligence cases?
We intentionally limit the number and the nature of medical malpractice cases we accept. Generally, we accept medical malpractice cases involving wrongful death or truly catastrophic, life-changing injuries. Delaware medical malpractice cases can be intensive to prosecute. In medical malpractice cases, we often must retain multiple medical expert witnesses to establish that the defendants deviated from the accepted standard of care, to prove that the negligence of the defendants caused injury, and to prove the full effects of that injury on the plaintiff’s life and lifestyle. As a result, we are forced to limit the cases we accept to those involving significant injuries.
The exceptions to the rule are retained surgical instrument cases, operating room explosion cases, and wrong-site surgeries. In these three types of cases, Delaware law provides a presumption that the defendant was negligent:
- Retained surgical instrument cases are surgery cases where the surgeon closed the surgery site but unintentionally left a tool, a sponge, or other material behind. These types of cases usually result in significant pain and suffering, disability, as well as subsequent surgery to recover the retained instrument.
- OR explosion cases are cases where an explosion or fire resulted from a substance used during the course of treatment. The most common explosion cases occur when the patient is “tented” in the operating room, there is oxygen present, and a surgeon uses an electrocautery device or another surgical implement that causes gasses to ignite.
- Wrong site surgery is when the surgeon (a) performs a procedure on the wrong patient, (b) treats the right patient but does the wrong procedure, or (c) treats the right patient with the right procedure, but does it on the wrong body part. An example of this type of case is the patient who goes in for a nephrectomy (removal of a kidney) due to kidney cancer, but the surgeon removes the healthy kidney and leaves behind the cancerous one.
What types of malpractice can become a Delaware medical malpractice case?
Our attorneys accept Delaware medical malpractice cases of many kinds and types. The following is a partial list:
- Hospital errors – Hospital errors are medical, nursing, or pharmacy errors made in a hospital setting. These errors can be wide-ranging, from doctors who order sulfa drugs for patients with known sulfa allergies to nurses and attendants who drop patients while transferring them from bed to gurney, to pharmacists who dispense the wrong medications in the wrong dosages to the wrong patients.
- Surgical mistakes – Surgical mistakes are mistakes made in the work-up and course of a surgical procedure. Surgical mistakes occur all too frequently. Some examples of surgical mistakes include the Obstetrician who delivers the baby then performs a tubal ligation on the mother, despite the fact that the mother has not requested it or provided informed consent to the procedure. Another example is the orthopedic surgeon who opens the right shoulder to repair a full-thickness tear of the patient’s rotator cuff tendon, only to find that there is no tear – because he’s supposed to be operating on the left shoulder. Another example is the surgeon who fails to complete a count of her sponges before closing the patient’s abdomen and leaves behind a sponge in the abdominal cavity.
- Missed diagnosis and delayed diagnosis – this is a category of cases where the doctor should have diagnosed the patient’s disease, but didn’t. As a result, the patient was denied the opportunity to receive treatment. An example of a missed diagnosis case is the patient who visits his primary care provider for a persistent cough. The PCP orders a chest X-Ray that shows likely lung cancer. The PCP does not review the X-Ray report or call the patient. A year passes before the patient returns with a worsening cough. Now the doctor realizes that he should have reviewed the X-Ray and referred the patient for cancer treatment a year ago, and now the cancer is inoperable.
- Medication errors – a medication error is a mistake made in the prescription or administration of medication. One example would be the doctor at the walk-in clinic who sees a patient with a bad case of bronchitis and prescribes Levaquin. The doctor failed to take a detailed medical history, so he didn’t know the patient was already on oral steroids. The combination of the antibiotic and oral steroids caused the patient’s Achilles tendons to rupture, requiring multiple surgeries and a long recovery.
- Birth injuries – birth injuries are injuries that occur during labor and delivery but can be injuries to the child or to the mother. One example would be failing to monitor the baby’s heart rate prior to birth to determine whether the infant was receiving adequate oxygen, and failing to deliver the baby via Caesarian or C-section when it became clear that adequate oxygen was not being provided. Lack of oxygen during childbirth can cause brain damage and a lifetime of problems for the child.
How much does it cost to talk to a Delaware medical malpractice lawyer?
It doesn’t cost anything to speak to a Delaware medical malpractice attorney to learn about your legal rights. We offer free consultations with our attorneys in these types of cases. If the attorney accepts the case and if you wish to hire us, we generally enter into a per diem fee agreement where the fee is capped at a reasonable percentage of your settlement or award.
Are there any special requirements to file a medical malpractice lawsuit in Delaware?
There are special requirements to file a medical malpractice lawsuit in the State of Delaware. First, a lawsuit alleging medical negligence can only be filed in the Superior Court of Delaware. The Superior Court has exclusive jurisdiction over healthcare medical negligence cases. See Title 18 Del.C. § 6802(a).
Another special requirement is that the lawsuit must be accompanied by an Affidavit of Merit. An Affidavit of Merit is an affidavit from a medical practitioner stating that the defendant acted negligently and that the defendant’s negligence caused injuries. The Delaware Affidavit of Merit requirement can be found at 18 Del.C. § 6853.
A big challenge in preparing and prosecuting a Delaware medical malpractice case is in finding a qualified medical professional to review the case and provide an Affidavit of Merit. Obtaining medical records and lining up reviews by an expert can take many months. As a result, because of this hurdle, it is very important to contact a Delaware medical malpractice lawyer as soon as possible after a death or injury is caused.
How Much Time Do We Have to File a Delaware Medical Malpractice Case?
Not much! Delaware’s Medical Malpractice Statute of Limitations seems like it’s designed to eliminate lawsuits. The Delaware Statute of Limitations on Medical Malpractice cases can be found at 18 Del.C. § 6856. Delaware law states that in general, a medical malpractice case must be filed within two years. The two years starts running when the negligence occurs.
There are some exceptions to this general rule. First, another year is added to the two-year statute of limitations in cases where the plaintiff did not know in the two years – and could not reasonably have discovered during the two years – that he or she was the victim of medical malpractice.
Another exception is that a child under the age of six years has until either (1) the date on which the statute of limitations would normally run, or (2) his or her sixth birthday, to file the lawsuit – whichever is later. (Note that this likely does not apply to sexual abuse of children by medical providers, as there is a specific statute at 18 Del.C. § 6856(3)a. stating, “Notwithstanding any provision to the contrary, a cause of action based on the sexual abuse of a child patient by a health-care provider may be brought at any time following the commission of the act or acts that constituted the sexual abuse.”)
Finally, a timely Notice of Intent to investigate can extend the statute of limitations period for a Delaware medical malpractice case. Subsection (4) of Title 18 Delaware Code, Section 6856 says that a plaintiff may toll (hit the pause button on) the statute of limitations for up to 90 days by sending a Notice of Intent to investigate each potential defendant. The Notice of Intent must be sent by Certified Mail, Return Receipt Requested to the defendant’s regular place of business, state the name of the potential defendant, the name of the plaintiff, and give a description of the malpractice being investigated. If a suit is filed beyond two years from the date of the incident but within that 90-day extension, then a copy of the notice must be attached to the lawsuit complaint.
When are Punitive Damages Awarded in Medical Malpractice Cases in Delaware?
It is rare that a Delaware medical malpractice case results in the award of punitive damages against a Delaware doctor, nurse, or other healthcare professional. By statute, punitive damages are only available when the injury was “maliciously intended” or the result of “wilful and wanton misconduct” by the healthcare provider. In relation to “wilful and wanton”, wilful means intentional. “Wanton conduct, resulting in injury to another . . . may be said to be such conduct as exhibits a conscious indifference to consequences in circumstances where the probability of harm to another within the circumference of the conduct is reasonably apparent, although harm to such other is not intended.” Law v. Gallegher, 9 W.W.Harr. 189, 39 Del. 189, 194-195, 197 A. 479, 482. The nub of this definition is in the phrase “conscious indifference”. In homely language, it means a foolhardy “I-don’t-care-a-bit-what-happens” attitude. Cf. Gerhauser v. Deemer, Del.Super. 116 A.2d 175. Mere negligent misconduct is not enough to sustain an award of punitive damages – intentional wrongdoing or a conscious indifference is necessary.
Are there Caps on Damages in Delaware Medical Malpractice Cases?
At the time this page’s content was written, there are no caps on damages in Delaware Medical Malpractice cases. We include this little disclaimer because the insurance companies that underwrite negligent, careless, and reckless medical providers habitually lobby the Delaware legislature to pass laws such as would impose caps on damages. The insurance companies pay for the defense of doctors in medical malpractice cases. The insurance companies pay for the settlements and awards of compensation. The insurance industry would like to do nothing more than take away your rights to bring to justice the negligent, careless, and reckless medical providers that ply their trade on an unsuspecting American public.
We have offices conveniently located to provide expert legal representation in Delaware, Maryland, New Jersey and Pennsylvania.
Please direct all mail to our
Dover, Delaware office.
Please note that we only accept mail, exparte notice or service of process at our Dover, Delaware office, and DO NOT accept mail, exparte notice or service of process at our regional office locations.