Medical Malpractice in Delaware
Medical malpractice arises when a doctor or medical facility harms a patient. There are different medical malpractice laws per state, so you should review your state’s laws to determine whether you have a case. These laws can influence the statute of limitations for filing a medical negligence claim. Additionally, they can dictate whether you have to notify the doctor or medical facility beforehand.
What Evidence Do I Need for Delaware Medical Malpractice Claims?
The burden of proof falls on the injured party in filing a medical malpractice claim. To prove your case, there are several conditions you must establish. An experienced Delaware medical malpractice lawyer can guide you through this entire process.
While there can be some differences in details based on the state in which you file your claim, there are some standard benchmarks to try and hit.
- There was a working relationship between the doctor and the patient.
- There was negligence on behalf of the doctor – You must prove the doctor was negligent in his or her diagnosis. You cannot sue a doctor for medical malpractice simply because you did not like their treatment or diagnosis.
- There needs to be cause and effect – Cases usually involve long-term injuries. You must prove the injuries referenced in the claim are a direct result of the doctor’s care and not because of any pre-existing condition.
- The injury represented in the claim led to further injury – You cannot sue for malpractice unless you suffer a direct injury. There are multiple types of pain that any Delaware patient can sue for currently.
Delaware legislation also requires that medical malpractice lawsuits include an affidavit of merit. Your litigation depends on having an expert witness willing to sign this critical document.
Hospital Responsibility
You may wonder if you can also sue the Delaware hospital or facility where the doctor works. In most situations, you cannot sue a hospital for the malpractice of a doctor. Most doctors are independent contractors, which absolves hospitals from liability. Nurses and other hospital staff are direct employees, so if the malpractice occurs through one of them, then there are grounds to sue the facility. So, unless the doctor is directly employed by the hospital or facility, they are not liable.
Types of Medical Malpractice
As long as you meet the conditions to file, you have grounds to file a claim, but you will need to decide in which category your claim falls. The most common categories include the following:
- Wrongful treatment – A doctor treats you poorly and in a way that no other credible medical professional would.
- Failure to diagnose correct illness – The doctor misdiagnosed your malady and caused an injury.
- Failure to disclose risks to patients – The doctor fails to inform you of the medical risks. Or, they did not carry out their duty of informed consent. As a result, their inaction prevented you from making an informed decision about the procedure or treatment.
There are additional categories or reasons for filing a lawsuit, such as the following doctor errors:
- Misreading or ignoring test results from the lab
- Making surgical errors
- Not following up properly or not offering adequate post-care
- Performing unnecessary procedures or surgeries
Damages Available in Delaware
There are three types of damages a court will award for medical malpractice.
- General damages – Compensation for physical or mental suffering due to the negligent actions of the doctor
- Punitive Damages – Damages awarded as punishment for the medical professional or facility at fault
- Special Damages – Damages for expenses from medical bills and lost wages
Many states have adopted limits on the damages a judge or jury can award in a medical malpractice state. However, the Delaware Code has not established a cap on the amount a plaintiff can receive.
Statute of Limitations
Medical malpractice claims carry a strict statute of limitations, which vary depending on the state. If you do not file the claim within the statute of limitations, the court will dismiss the case with prejudice regardless of the facts.
Delaware Insurance Code gives victims of medical malpractice two years to file a lawsuit. Attempting to take civil actions after this point will likely result in the court dismissing your complaint.
Medical Malpractice Review Panels
In some states, filing a medical malpractice claim requires presenting your case to a review panel of medical experts. This panel examines the evidence and expert testimony to determine whether malpractice occurred. While their decision isn’t the same as a court ruling, it’s often a necessary step in preparing for a lawsuit.
The panel’s findings can add significant credibility to your claim. These findings are typically submitted to the court, where they may be referenced and can influence the final decision.
In Delaware, you can go through the Fraud & Consumer Protection Division to get the state government involved. Additionally, the Division of Professional Regulation provides a portal for healthcare providers to contact officials. Doctors, nurses, and other staff members must submit reports if they become aware of improper behavior.
Do I Need to Hire an Attorney?
Medical malpractice claims in Delaware can be complex and difficult to prove. It can be an overwhelming task, especially if you are still suffering as a result of the doctor’s actions. We recommend consulting with a personal injury attorney in Delaware with experience in medical malpractice.
A medical malpractice attorney can help you in many ways to put together your case. Working with an attorney means he or she will often do the following:
- Build your case
- Collect important evidence
- Find expert witnesses to testify on your behalf
- Help you prepare for the malpractice review panel
- Take your claim to court
Work with an Experienced Local Lawyer in Delaware
Since your case is incredibly important to you, it makes sense to seek legal help. You should at minimum consult with a qualified Delaware attorney who is familiar with such cases. We can even help you connect with an attorney across Delaware state lines.
Submit a request online or call us today at (866) 345-6784 to speak with an experienced lawyer in your area!
About the Author
Aaron is a professional legal writer with a B.S. in English Education from Southern Illinois University – Carbondale. He has written, published, and edited thousands of legal articles for RequestLegalHelp, which has connected over 5 million people to legal help in the United States.
With over five years of experience writing thousands of legal articles for law firms across the U.S. and Canada, Aaron specializes in covering federal, state, and city-level legal issues ranging from auto accidents to wrongful terminations.
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