Medical Malpractice Laws in Delaware (2026): Deadlines & Caps

Delaware handles medical malpractice under its Health-Care Medical Negligence Insurance and Litigation Act, and two rules drive most cases: the filing deadline and the expert affidavit. A patient generally has two years from the date of injury to sue under 18 Del. C. 6856, and the complaint must be accompanied by an affidavit of merit signed by a qualified medical expert under 18 Del. C. 6853, unless the complaint alleges one of three narrow situations that raise a rebuttable inference of negligence.

This page is general legal information, not legal advice, and it is part of our Medical Malpractice Laws by State series. Because the deadlines and exceptions depend on the facts, confirm your situation with a licensed Delaware attorney.

What counts as medical malpractice in Delaware?

Delaware defines medical negligence as a health care provider's failure to use the degree of skill and care that a reasonably prudent provider in the same field would use under similar circumstances. The claim is governed by Title 18, Chapter 68 of the Delaware Code, the Health-Care Medical Negligence Insurance and Litigation Act. Physicians, surgeons, dentists, nurses, hospitals, and other licensed providers can be liable for negligence in diagnosis, treatment, or care. A disappointing result is not enough; the patient must show a breach of the standard of care that caused the injury.

The statute of limitations to sue in Delaware

Under 18 Del. C. 6856, a medical negligence action generally must be filed within two years from the date the injury occurred. Delaware ties the clock to the date of the wrongful act or omission, which makes the deadline stricter than in states that start the clock only at discovery. For most adult patients, the practical filing window is two years from the date of the negligent care.

There is a limited discovery extension. If the injury was unknown to the patient and could not, in the exercise of reasonable diligence, have been discovered within two years, the action may be brought within three years from the date of the injury. That three-year point is a firm cutoff for most adults, so the discovery rule does not open an unlimited window.

Delaware's statute of repose and key exceptions

The three-year limit in 18 Del. C. 6856 functions as an outer deadline. Even when the discovery rule applies, an adult patient generally cannot sue more than three years after the injury occurred. Delaware carves out an important exception for young children: a child who was under six years of age at the time of the injury generally has until the child's sixth birthday to bring the action, even if that is later than the standard period. A separate provision, 18 Del. C. 6853(e), creates a rebuttable inference that an injury or death was caused by negligence in three specific situations, which also excuses the affidavit of merit described below.

Damage caps in Delaware

Delaware does not cap compensatory damages in medical malpractice cases. There is no statutory ceiling on economic damages such as medical expenses and lost earnings, and no cap on non-economic damages such as pain and suffering. Separate statutory limits can apply to claims against state and local government entities under Delaware's sovereign-immunity and tort-claims rules, but those are not malpractice-specific caps. For private health care providers, the value of a case is set by the evidence rather than a fixed statutory number.

Chapter 68 does impose other limits that readers should know about. Under 18 Del. C. 6865, the claimant's attorneys' fees may not exceed 35 percent of the first $100,000 of damages, 25 percent of the next $100,000, and 10 percent of the balance, although a claimant may instead elect in writing, at the time of employment, to pay on a mutually satisfactory per diem basis. Under 18 Del. C. 6855, punitive damages may be awarded only if the injury was maliciously intended or resulted from wilful or wanton misconduct by the provider, and only if the trier of fact makes a separate award and finding apart from compensatory damages. Under 18 Del. C. 6862, evidence of public collateral sources of compensation may be introduced and, if introduced, must be considered by the trier of fact; life insurance and private collateral sources are excluded.

Affidavit of merit and expert requirements

Delaware requires expert support up front. Under 18 Del. C. 6853, the complaint in a medical negligence case must be accompanied by an affidavit of merit signed by an expert witness, with the expert's current curriculum vitae, stating that there are reasonable grounds to believe each defendant was negligent and that the negligence caused the injury. The affidavit is filed under seal and kept confidential. The expert generally must be licensed and, within three years of the alleged negligence, engaged in treating patients or teaching in the same or a similar field, and board certified if the defendant is board certified. For good cause shown, the court may grant a single 60-day extension to file the affidavit if the request is made before the limitation period expires.

There is one exception. Under 18 Del. C. 6853(b), an affidavit of merit is unnecessary if the complaint alleges a rebuttable inference of medical negligence on one of the grounds set out in 18 Del. C. 6853(e): a foreign object was unintentionally left within the patient's body following surgery; an explosion or fire originating in a substance used in treatment occurred in the course of treatment; or a surgical procedure was performed on the wrong patient or the wrong organ, limb, or body part. Outside those three situations, the affidavit requirement applies, and expert medical testimony is still required to establish the deviation from the standard of care and causation.

Pre-suit notice in Delaware

Delaware does not use a mandatory screening panel, but it offers an optional pre-suit notice that buys time. Under 18 Del. C. 6856, a potential plaintiff can toll the statute of limitations for up to an additional 90 days by sending a written notice of intent to investigate to each potential defendant before the deadline runs. The statute sets the method of delivery, and it is not optional: the notice must go to each potential defendant by certified mail, return receipt requested, at that defendant's regular place of business. Ordinary mail will not secure the 90 days. This extra time can give a claimant room to obtain medical records and secure the affidavit of merit.

Comparative negligence in Delaware

Delaware follows modified comparative negligence under 10 Del. C. 8132. A plaintiff can recover as long as the plaintiff's own negligence was not greater than the negligence of the defendant, or the combined negligence of all defendants from whom recovery is sought. If the plaintiff is partly at fault, the damages are reduced in proportion to the plaintiff's share of fault. If the plaintiff's fault is greater than the defendants' combined fault, the plaintiff recovers nothing, which is often called a 51 percent bar.

Wrongful-death medical malpractice in Delaware

When malpractice causes a patient's death, the deadline is set by the malpractice statute, not by the general wrongful-death statute. By its own terms, 18 Del. C. 6856 governs any claim against a health care provider "for personal injury, including personal injury which results in death, arising out of medical negligence," and it bars the action two years "from the date upon which such injury occurred." Delaware's general two-year limitation for wrongful death, 10 Del. C. 8107, does not displace that rule; 10 Del. C. 8128 expressly directs health care malpractice claims to the period set out in 18 Del. C. 6856.

The practical consequence matters a great deal. The clock runs from the date of the negligent act or omission, not from the date of death, so a family that waits two years from a death can find the claim already time-barred when the negligence happened earlier. Delaware also allows a separate survival claim for the harm the patient suffered before death. Because the deadline and the proper plaintiff can both differ from a routine malpractice claim, a family should have a Delaware attorney fix the correct date immediately rather than assume the death started the clock.

How to evaluate and preserve a possible claim

While every situation is different and this is general information rather than legal advice, people who suspect malpractice in Delaware often begin by requesting complete medical records and writing down key dates, because the two-year clock under 18 Del. C. 6856 starts at the date of injury. An attorney typically arranges for a qualified expert to review the records, since the affidavit of merit must accompany the complaint in most cases. The optional 90-day notice of intent can extend the deadline while that review happens, provided it goes out by certified mail, return receipt requested. Malpractice cases are commonly handled on a contingency-fee basis, and 18 Del. C. 6865 limits what the claimant's attorneys' fees may be. Consulting a licensed Delaware attorney early helps, though no attorney can promise a particular outcome or dollar amount.