Delaware Medical Malpractice Summary

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Statutes of Limitations

Any medical malpractice action, whether for injury or death, must be brought within two years after the date of the injury. Del. Code Ann. tit. 18, § 6856 (1989). If, however, the injury is not one that can be discovered with reasonable diligence, the claimant is afforded an additional year in which to bring an action. Id. For minors six years of age or younger, a medical malpractice action must be brought within the two-year time limit or by the child’s sixth birthday, whichever is later. Id. A former version of this statute, with substantially the same terms, has been held to be constitutional. Reyes v. Kent General Hospital, 487 A.2d 1142 (1984).

Contributory or Comparative Negligence

Delaware has adopted the modified doctrine of comparative negligence. Del. Code Ann. tit. 10, § 8132 (Supp. 1994). Under this doctrine, a claimant’s action is barred if his negligence exceeds the combined negligence of all defendants. Otherwise, the claimant’s recovery is diminished in proportion to his degree of negligence. Id.

Joint and Several Liability

In Delaware, joint tortfeasors are jointly and severally liable, Del. Code Ann. tit. 10, § 6301 (1975), so any tortfeasor against whom judgment has been entered is liable to the claimant for the entire judgment, regardless of his degree of negligence.

Contribution

Delaware affords joint tortfeasors a right to contribution. Del. Code Ann. tit. 10, § 6302 (1975). If the tortfeasors’ relative degrees of fault are disproportionate, making equal shares in contribution inequitable, the relative degree of fault of each tortfeasor will be considered in determining his pro rata share; otherwise, the tortfeasors’ liability for contribution is apportioned equally without regard to their relative degree of fault. Id. A settling joint tortfeasor is not entitled to contribution from a tortfeasor whose liability was not extinguished by the settlement. Id. A right to contribution cannot be pursued in a separate action if it can be enforced by cross-claim in the original action. Del. Code Ann. tit. 10, § 6306 (1975).

Vicarious Liability

Delaware recognizes under principles of apparent agency that a hospital may hold out a non-employed physician so as to give the appearance that the physician is an employee of the hospital, thus creating an apparent agency and making the hospital liable for the physician’s negligent acts. Vanaman v. Milford Memorial Hospital, 272 A.2d 718 (Del. 1970); Fulton v. Quinn, No. C.A. 89C-AU-36, 1993 WL 19674 (Del. Super. 1993).

Expert Testimony

Delaware requires that medical malpractice claims be supported by expert medical testimony that establishes a deviation from the applicable standard of care. Del. Code Ann. tit. 18, § 6853 (1989). However, a claimant need not produce medical testimony when a malpractice review panel’s findings of negligence can be introduced into evidence (see Arbitration), or when the injury is caused by a foreign object left in the body or by surgery on the wrong body part. Id. A physician who has practiced actively for the previous five years in Delaware or in a contiguous state within 75 miles of Delaware’s capital is presumed competent. Del. Code Ann. tit. 18, § 6854 (1989).

Damage Caps

Delaware does not place a limit on the damages a claimant may recover.

Statutory Cap on Attorneys’ Fees

Delaware limits the amount attorneys may collect as a contingency fee in connection with medical malpractice claims to 35 percent of the first $100,000 in damages, 25 percent of the next $100,000, and 10 percent of any remaining award. Del. Code Ann. tit. 18, § 6865 (1989). A party may also elect to pay his attorney on a per diem basis if a written contract providing for such compensation is drafted at the time of employment. Id.

Periodic Payments

Delaware courts have the option in malpractice cases of requiring that compensation for future damages be divided into monthly payments. Del. Code Ann. tit. 18, § 6864 (1989). If the claimant dies while periodic payments remain owing, the court will deduct any amounts allocated for future pain and suffering and future health care expenses from the judgment debtor’s future obligation, with the remainder going to the plaintiff’s estate. Id. However, if the periodic payments were scheduled to last longer than 20 years, and the claimant dies after 20 years, the judgment debtor’s obligation is terminated. Id. There appear to be no published opinions referring to this provision, so it may not be greatly used. In a single case found on an electronic database, which involved lifetime care for a disabled infant, the court elected not to apply the statute. Garrison v. Medical Center of Delaware, Inc., No. CIV. A. 87C-DE-108, 1992 WL 179492 (Del. Super. 1992).

Collateral Source Rule

Delaware has partially eliminated the collateral source rule. Del. Code Ann. tit. 18, § 6862 (1989). The defendant can offer evidence of public collateral sources of compensation, including future benefits, and any prospective changes in “marital, financial or other status of any person seeking or benefitting from such damages.” Id. A medical malpractice defendant, however, cannot offer evidence of collateral payments from life insurance or private collateral sources of compensation. Id.

Pre-Judgment Interest

Delaware does not allow pre-judgment interest for bodily injury or other injuries for which the damages are not calculable. Rollins Environmental Services, Inc. v. WSMW Industries, Inc., 426 A.2d 1363 (Del. Super. 1980).

Patient Compensation Funds and Physician Insurance

Delaware does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.

Immunities

Delaware municipalities, towns, cities, and counties (and their employees) enjoy immunity from liability in tort unless recovery is specifically authorized by statute. Del. Code Ann. tit. 10, § 4011 (Supp. 1994). A government employee may be liable for damages only when such damages arise in circumstances where the employee was not acting within the scope of his employment or where his conduct was willful and wanton. Id. There is a statutory exception to the general immunity for liability resulting from the use of machinery or equipment, the construction and maintenance of a public building, or the sudden and accidental discharge of chemicals or gases. Del. Code Ann. tit. 10, § 4012 (1990). Where the public entity is not immune, damages are capped at $300,000, unless the entity has purchased liability insurance with coverage greater than $300,000. Del. Code Ann. tit. 10, § 4013 (1990).

The State of Delaware and its political subdivisions have maintained immunity for acts performed in an official capacity, acts done in good faith, and acts done without gross or wanton negligence. Del. Code Ann. tit. 10, §§ 4001 and 4003 (Supp. 1994). The state does, however, owe negligent state employees a duty of indemnification. Del. Code Ann. tit. 10, § 4002 (Supp. 1994). The state is entitled to purchase insurance to cover potential tort liability. Del. Code Ann. tit. 10, § 4005 (Supp. 1994). However, the purchase of insurance constitutes a waiver of the government entity’s sovereign immunity. Holden v. Bundek, 317 A.2d 29 (Del. 1972).

Arbitration

Delaware has established a system of mandatory malpractice review panels that is designed to prevent controversies from advancing to litigation. Del. Code Ann. tit. 18, § 6803 (1989). The panel will advise the court whether the evidence supports the conclusion that the defendants failed to comply with the standard of care. Del. Code Ann. tit. 18, § 6811 (1989). A party can request the court to review the opinion of the panel and the court has the power to strike any portion of the panel’s opinion that is found to be based on an error of law or unsupported by substantial evidence. Id.

The panel’s (negative) opinion is admissible as prima facie evidence of negligence, but the opinion is not conclusive, except in the case of foreign object claims, an explosion or fire from treatment, or a surgical procedure performed on the wrong part of the body. Del. Code Ann. tit. 18, §§ 6853 and 6812 (1989). Members of the review panel may not be required to testify in court. Del. Code Ann. tit. 18, § 6812 (1989).

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Revision Date: February 6, 1998