Wilmington, Dover, Newark, Middletown, Smyrna
The Law of Medical Malpractice in Delaware:
A Survey of Basic Considerations
Delaware medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in Delaware are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Delaware exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Delaware by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.
This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Delaware medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both non-lawyers and legal practitioners alike.
Section I below discusses the broad basic principles and concepts of medical malpractice law in Delaware. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through X examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Delaware.
Below is a list of topics covered in this article.
-What is Medical Malpractice in Delaware?
-Required Elements of a Medical Malpractice Claim in Delaware
-The Basic Elements
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Delaware
-The Discovery Rule
-The Discovery Rule in Delaware
-Notice of Intent to Investigate
-Statute of Repose in Delaware
-Good Samaritan Law
-Good Samaritan Law in Delaware
-Additional Immunities and Limitations on Liability
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony
-Admissibility of Expert Testimony in Delaware
-Modified Comparative Negligence with 51% Bar Rule
-Apportionment of Fault with Multiple Defendants
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Delaware
I. Overview of Basic Principles and Concepts
What is Medical Malpractice in Delaware?
Medical malpractice is a specific type of professional negligence by a healthcare provider. In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice. When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.
Required Elements of a Medical Malpractice Claim in Delaware
It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Delaware law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. Some degree of risk is inherent in most medical procedures. The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment. While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.
Delaware medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. The negligence must be the actual cause in fact of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.
The Delaware Supreme Court is very clear on this issue. It explained that in a medical malpractice action “negligence is not presumed but must be affirmatively proven. This proposition is so elementary as to require no citation of authority. Nor does the sole fact that an injury has resulted from a certain treatment raise any presumption of negligence on the part of the attending doctor.” Christian v. Wilmington General Hospital Association, Inc., 135 A.2d 727, 730 (Del. 1957).
The Basic Elements
Delaware has codified the basic elements of a compensable medical malpractice claim in Delaware Code (“DC”) § 6853. The statute provides:
No liability shall be based upon asserted negligence unless expert medical testimony is presented as to the alleged deviation from the applicable standard of care in the specific circumstances of the case and as to the causation of the alleged personal injury or death…. Except as otherwise provided herein, there shall be no inference or presumption of negligence on the part of a health care provider.
The Delaware Supreme Court instructed that “a party alleging medical malpractice must produce expert testimony that specifies (1) the applicable standard of care, (2) the alleged deviation from that standard, and (3) the causal link between the deviation and the alleged injury.” Green v. Weiner, 766 A.2d 492, 494-495 (Del. 2001).
It is important to note that under the statute there is no presumption of negligence with respect to medical malpractice claims. DC § 6853 expressly states that “there shall be no inference or presumption of negligence on the part of a health care provider.” Accordingly, it is clear that the plaintiff bears the burden of proving each essential element of a medical malpractice claim in Delaware.
Under DC § 6853, the plaintiff bears the burden of establishing the applicable standard of care through expert testimony “since only in the most superficial way can laymen be expected to know the appropriate standards of care to be followed.” Christian, 135 A.2d at 730. According to the Delaware Supreme Court, “[t]his, in turn, requires proof of the relevant medical standards followed by physicians in good standing in the community under like circumstances. Baylis v. Wilmington Medical Center, Inc., 477 A.2d 1051, 1057 (Del. 1984). Notably, “experts specializing in a particular field of study are held to the standard of care employed by others in that same field.” Corbitt v. Tatagari, 804 A.2d 1057, 1063 (Del. 2002). That is, specialists are held to the standard of care of their specialty.
Plaintiffs must produce expert medical witnesses in order to establish the applicable standard of care governing his or her medical malpractice claim. In addition, expert medical witness testimony is required to establish that the defendant failed to conform with the applicable standard of care, i.e., breached the standard of care. Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
The issue of causation “is ordinarily a question of fact to be submitted to the jury.” Culver v. Bennett, 588 A.2d 1094, 1098 (Del. 1991). Before the issue of causation “may be submitted to the jury, the plaintiff is required to establish a prima facie case on that issue.” Money v. Manville Corporation Asbestos Disease Compensation Trust Fund, 596 A.2d 1372, 1375 (Del. 1991). That is, the plaintiff must at least meet his or her minimum burden of proof on the issue for it to be submitted to the jury for determination. In addition, the Delaware Supreme Court stated that the governing statute “usually requires direct expert medical testimony to support a jury’s finding of negligence and causation.” Id.
However, where the issue of causation “is within a lay person’s scope of knowledge,” expert medical witness testimony is not required to establish causation. Id. Classic examples of situations that are generally considered within the comprehension of lay people include (1) a foreign object inadvertently left inside a patient’s body following surgery and (2) the amputation of the wrong limb, e.g., right leg amputated instead of left leg. In these types of situations, it is generally considered within a juror’s common knowledge and experience that the injury was one that would not ordinarily occur without negligence. Thus, expert medical witness testimony is typically not required to establish the applicable standard of care and breach in such cases.
In fact, the foregoing typical exceptions to the general requirement for expert medical testimony have been codified in DC § 6853(e), which provides:
a rebuttable inference that personal injury or death was caused by negligence shall arise where evidence is presented that he personal injury or death occurred in any 1 or more of the following circumstances:
(1) A foreign object was unintentionally left within the body of the patient following surgery;
(2) An explosion or fire originating in a substance used in treatment occurred in the course of treatment; or
(3) A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of the patient’s body.
II. Filing Deadlines for Medical Malpractice Claims
Introduction to Statute of Limitations
Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case. In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.
These strict filing deadlines are referred to as a statute of limitations. Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard. In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.
A statute of limitations can often be tolled or extended. Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period. For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time. The deadline to carry out a specified action under a statute of limitations can also be extended. For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.
Statute of Limitations for Medical Malpractice Claims in Delaware
In general, medical malpractice claims in Delaware are subject to the standard two-year statute of limitations contained in DC § 6856, which states:
No action for the recovery of damages upon a claim against a health-care provider for personal injury, including personal injury which results in death, arising out of medical negligence shall be brought after the expiration of 2 years from the date upon which such injury occurred….
The critical question that must be addressed in any statute of limitations inquiry is the meaning of the phrase ‘injury occurred.’ It could refer to at least three different events and corresponding dates: (1) when the alleged neglect act or omission occurred, (2) when the harm was first discovered by the plaintiff, (3) or when all the elements for a viable medical malpractice claim exist. The answer to this question is extremely important because it determines when the statute of limitations begins to run on a plaintiff’s claim and consequently on what date he or she is time-barred from bringing an action.
The Delaware Supreme Court first addressed this question in the 1979 case Dunn v. St. Francis Hospital, Inc., 401 A.2d 77 (Del. 1979). After thoroughly reviewing the legislative history of DC § 6856, the Court announced “there is no doubt that the phrase ‘injury occurred’ refers to the date when the wrongful act or omission occurred.” Id. at 80. In Dunn, the Court flatly rejected the plaintiff’s argument that the phrase ‘injury occurred’ refers to the general theory of negligence, which requires three elements to be present—negligence, causation, and damage. Id. Accordingly, the Court held that the phrase ‘injury occurred’ in the statute refers to the date of the medically negligent act. Id.
It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired. Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery. As such, it is critical to understand how time is computed under Delaware law in calculating the exact date the applicable limitations period ends. Rule 6(a) of the Rules of Civil Procedure for the Superior Court of the State of Delaware sets forth how time is calculated. It states:
In computing any period of time prescribed or allowed by these Rules, by order of court, or by statute, the day of the act, event or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday or Sunday, or other legal holiday, or other day on which the office of the Prothonotary is closed, in which event the period shall run until the end of the next day on which the office of the Prothonotary is open. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and other legal holidays shall be excluded in the computation. As used in this rule, “legal holidays” shall be those days provided by statute or appointed by the Governor or the Chief Justice of the State of Delaware.
The Discovery Rule
Every state has some version of the Discovery Rule. In general, the Discovery Rule is an exception to the standard statute of limitations. It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff. Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision. The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.
The Discovery Rule in Delaware
Delaware recognizes the Discovery Rule in medical malpractice cases. In fact, it is incorporated into DC § 6856 itself. DC § 6856(1) states:
Solely in the event of personal injury the occurrence of which, during such period of 2 years, was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured person, such action may be brought prior to the expiration of 3 years from the date upon which such injury occurred, and not thereafter….
Under Delaware’s formulation of the Discovery Rule, if the plaintiff did not know of the injury and could not have known about it within the two-year standard limitations period, he or she has one additional year from the date of the act or omission alleged to have caused the injury in which to bring suit.
The Delaware Supreme Court explained that the “limited extension period, in our judgment, is intended to give consideration to the problem of an injury which is not physically ascertainable. Such extension further appears directly intended to limit the open-ended aspect of the prior law which provided in the case of an ‘inherently unknowable’ injury that the applicable period began to run when the injured person became aware of his injury.” Dunn v. St. Francis Hospital, Inc., 401 A.2d 77, 79 (Del. 1979). The Court opined that “[i]t simply appears on the face of the statute that § 6856(1) is an attempt to both codify the ‘inherently unknowable’ injury rule [i.e., the Discovery Rule] of the Layton case and to limit it to three years.” Id.
The Delaware Supreme Court described the medical malpractice statute of limitations contained in DC § 6856 as “a limited hybrid statute of limitations. In other words, there is one period (two years) applicable to injuries discovered at the time of the wrongful act and a different period (three years) for ‘inherently unknowable’ injuries.” Ewing v. Beck, 520 A.2d 653, 659 (Del. 1987).
It is important to note that the Delaware Supreme Court clarified that “for a plaintiff to receive the benefit of a three year Statute of Limitations, he must show that the injury could not reasonably have been known to him, and that the injury was, in fact, not known to him during the two year period from the date of the injury.” Reyes v. Kent General Hospital, Inc., 487 A.2d 1142, 1144-1145 (Del. 1984). The Court added that “when an inherently unknowable injury becomes known to the plaintiff in the two year period from the alleged date of injury, the plaintiff does not get the additional one year extension provided in” the statute. Id. at 1145.
Notice of Intent to Investigate
DC § 6856(4) tolls the applicable statute of limitations for up to 90 days to allow the plaintiff to investigate a specific issue related to the medical malpractice claim. It provides:
A plaintiff may toll the above statutes of limitations for a period of time up to 90 days from the applicable limitations contained in this section by sending a Notice of Intent to investigate to each potential defendant or defendants by certified mail, return receipt requested, at the defendant’s or defendants’ regular place of business. The notice shall state the name of the potential defendant or defendants, the potential plaintiff and give a brief description of the issue being investigated by plaintiff’s counsel. The 90 days shall run from the last day of the applicable statute of limitations contained in this section. The notice shall not be filed with the court. If suit is filed after the applicable statute of limitations in this section, but before the 90-day period in this section expires, a copy of the notice shall be attached to the complaint to prove compliance with the statute of limitations.
Children younger than six years of age are subject to an exception to the standard two-year statute of limitations. DC § 6856(2) provides that a minor under the age of six has either the standard two-year limitations period in which to bring an action or until the minor’s sixth birthday, whichever is later.
The application of Delaware’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven. The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Delaware medical malpractice attorney. In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an Delaware attorney who specializes in medical malpractice law at the earliest possible opportunity.
III. Statute of Repose—Absolute Bar to Recovery
Statutes of repose are procedurally related to statutes of limitations. Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed. If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.
Although they can be thought of as being related, there are critical differences between them. The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes. A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.
In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued. In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury. The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued. Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.
Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists. A statute of repose serves as an absolute bar to recovery. Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations. The statute of repose controls in that scenario.
While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose. In fact, even many practicing lawyers do not fully appreciate the critical differences between the two. This is likely due to the fact that statutes of repose are relatively rare. Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.
Statute of Repose in Delaware
Although medical malpractice claims in Delaware are not expressly subject to a separate statute of repose, the governing medical malpractice statute of limitations effectively operates as one. The running of Delaware’s statute of limitations is triggered in the same manner as that of a statute of repose—the occurrence of a specified event regardless of whether a cause of action has yet accrued. The result is that the statute of limitations can expire and thus bar the injured party from ever bringing suit even before he or she has any knowledge that he or she has a legal right to do so, just like a statute of repose. Accordingly, while Delaware law does not contain an official statute of repose governing medical malpractice claims, the application of its statute of limitations mimics a statute of repose’s results in practice.
IV. Immunities and Limitations on Liability
Good Samaritan Law
The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency. While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so. It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).
In response, states have enacted Good Samaritan laws. While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency. Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation. As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.
Good Samaritan Law in Delaware
Delaware has enacted a general Good Samaritan law that is codified in DC § 6801(a). The statute provides immunity for individuals who voluntarily and without the expectation of compensation render first aid, emergency care, or recuse assistance to a person who is unconscious, ill, injured, or in need of assistance. It states:
any person who voluntarily, without the expectation of monetary or other compensation from the person aided or treated, renders first aid, emergency treatment or rescue assistance to a person who is unconscious, ill, injured or in need of rescue assistance, or any person in obvious physical distress or discomfort shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such first aid, emergency treatment or rescue assistance, unless it is established that such injuries or such death were caused wilfully, wantonly or recklessly or by gross negligence on the part of such person.
Under Delaware’s Good Samaritan law, both medical and nonmedical would-be Good Samaritans may qualify for immunity from civil damages while rendering emergency care. However, in order to qualify for immunity under the statute, the emergency assistance cannot be rendered at a hospital or clinic. The statute reads: “This section shall not apply if such first aid or emergency treatment or assistance is rendered on the premises of a hospital or clinic.” DC § 6801(a). This provision prevents healthcare practitioners at a hospital or clinic from invoking immunity from civil damages when they render emergency care to a patient at the facility who is not, at the time of the treatment, a patient of the healthcare practitioner.
The statute expressly covers the following categories of people:
This section shall apply to members or employees of nonprofit volunteer or governmental ambulance, rescue or emergency units, whether or not a user or service fee may be charged by the nonprofit unit or the governmental entity and whether or not the members or employees receive salaries or other compensation from the nonprofit unit or the governmental entity. DC § 6801(a).
The immunity granted by Delaware’s Good Samaritan law does apply if “it is established that such injuries or such death were caused wilfully, wantonly or recklessly or by gross negligence on the part of such person.” DC § 6801(a). Thus, Good Samaritans are shield from civil liability for negligence, but not conduct that amounts to wilful, wanton, reckless, or gross negligence. Finally, the statute provides: “This section shall not be construed to require a person who is ill or injured to be administered first aid or emergency treatment if such person objects thereto on religious grounds.” Id.
Additional Immunities and Limitations on Liability
There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Delaware Code. Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Title 16—Health and Safety of the Delaware Code.
V. Required Elements of a Medical Malpractice Complaint
In Delaware, there is only one recognized form of action, and it is known as a “civil action.” Rule 2 of the Rules of Civil Procedure for the Superior Court of the State of Delaware. A medical malpractice action is commenced by filing a complaint with the Prothonotary (essentially, chief clerk of the court). Rule 3(a). Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief. A complaint is one of the authorized types of pleadings provided for in Rule 7(a). The plaintiff must submit enough copies of the complaint so that one copy can be served on each of the defendants named in the complaint. Id. According to Rule 7(d), complaints “shall be typewritten upon opaque, unglazed, white paper approximately 81/2” x 11” in size.”
The plaintiff must submit $125 together with the complaint, “as a deposit of guaranty for the payment of the fees and costs in the Prothonotary’s office.” Rule 3(e). If the initial deposit is depleted, the Prothonotary shall demand and receive additional amounts, as determined by the Prothonotary, sufficient to cover the costs for additional services. Id.
Rule 8(a) requires that a complaint “shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the party deems itself entitled. Relief in the alternative or of several different types may be demanded.”
Under Rule 8(e)(1), “[e]ach averment [i.e., allegation] of a pleading shall be simple, concise and direct. No technical forms of pleading or motions are required.” The complaint may “set forth two or more statements of a claim … alternatively or hypothetically….” Rule 8(e)(2). In addition, the complaint may contain as many separate claims as the plaintiff has “regardless of consistency.” Id. All complaints “shall be so construed as to do substantial justice.” Rule 8(f).
A medical malpractice complaint must include the circumstances alleged to constitute the negligence upon which the claim is based, and the circumstances must “be stated with particularity.” Rule 9(b). Identifying the time and place of the alleged negligence is material and may be used to test the sufficiency of the complaint. Rule 9(f). A medical malpractice complaint “shall demand damages generally without specifying the amount….” Rule 9(g).
The complaint must contain a caption “setting forth the name of the Court, the title of the action, the file number, and a designation as” a complaint. Rule 10(a). For a complaint, “the title of the action shall include the names of all the parties….” Id. All allegations of claim “shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances….” Rule 10(b). In addition, each claim that is based upon a separate transaction or occurrence “shall be state in a separate count … whenever a separation facilitates the clear presentation of the matters set forth.” Id. Finally, a complaint may not “be filed under a pseudonym without prior Court approval or unless accompanied by a motion seeking approval.” Rule 10(e).
Delaware is a notice pleading state. Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005). As such, the threshold for a complaint to survive a motion to dismiss is low. Id. To survive, a complaint need only give “general notice of the claim asserted.” Id. A trial court may dismiss a complaint for failure to state a claim only if “it appears with reasonable certainty that the plaintiff could not prove any set of facts that would entitle him to relief.” Id.
The basic requirement for a well-pleaded complaint is that it “puts the opposing party on notice of the claim brought against it.” Id. That is, “a plaintiff need not plead specific facts to state an actionable claim. VLIW Technology, LLC v. Hewlett-Packard Company, 840 A.2d 606, 611 (Del. 2003).As per Rule 8(a), a complaint is sufficient as long as it contains “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. (quoting Rule 8(a)). The Delaware Supreme Court instructed: “under Delaware’s judicial system of notice pleading, a plaintiff need not plead evidence. Rather, the plaintiff need only allege facts that, if true, state a claim upon which relief can be granted.” Id.
Fact pleading is the other (less common) system of pleading. For example, Oregon is a fact (or code) pleading state. Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983). According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood. The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought. This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A). Id. at 1191-1192. Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.
The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.
VI. Affidavit of Merit
Delaware law requires plaintiffs to file an Affidavit of Merit together with their medical malpractice complaint. DC § 6853. If it does not accompany the complaint, the court clerk must refuse to file the complaint. DC § 6853(a)(1). The statute states: “No health-care negligence lawsuit shall be filed in this State unless the complaint is accompanied” by an Affidavit of Merit. DC § 6853(a).
An Affidavit of Merit is a confidential document “stating that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant.” Id. Additionally, an Affidavit of Merit “shall set forth the expert’s opinion that there are reasonable grounds to believe that the applicable standard of care was breached by the named defendant or defendants and that the breach was a proximate cause of injury or injuries claimed in the complaint.” DC § 6853(c). The plaintiff must provide an Affidavit of Merit with respect to each defendant. Id.
An Affidavit of Merit must be signed by an expert. DC § 6853(a). DC § 6853(c) sets forth the qualifications that must be satisfied in order for an expert to sign an Affidavit of Merit. It states:
An expert signing an affidavit of merit shall be licensed to practice medicine as of the date of the affidavit; and in the 3 years immediately preceding the alleged negligent act has been engaged in the treatment of patients and/or in the teaching/academic side of medicine in the same or similar field of medicine as the defendant or defendants, and the expert shall be Board certified in the same or similar field of medicine if the defendant or defendants is Board certified. The Board Certification requirement shall not apply to an expert that began the practice of medicine prior to the existence of Board certification in the applicable specialty.
VII. Expert Medical Witnesses
The general rule under medical malpractice law holds that expert witnesses are nearly always required. The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses. As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization. Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.
Delaware has codified the general rule requiring expert testimony to establish the essential elements of a medical malpractice claim. DC § 6853. As the Delaware Supreme Court explained, “the Delaware statute specifically mandates that, before liability can be found in a medical malpractice action, the plaintiff bears the initial burden of presenting expert medical testimony as to both the alleged deviation from the applicable standard of care and the causal connection between the wrongful conduct and the alleged injury. Burkhart v. Davies, 602 A.2d 56, 60 (Del. 1991). The Court instructed that “the production of expert medical testimony is an essential element of a plaintiff’s medical malpractice case and, as such, is an element of which he or she bears the burden of proof. Id.
Who Qualifies as An Expert Medical Witness
The starting point in the determination of whether a prospective expert medical witness is qualified to provide expert testimony in a medical malpractice case is DC § 6854. The statute mandates that prospective expert medical witnesses meet the following minimum requirement: “No person shall be competent to give expert medical testimony as to applicable standards of skill and care unless such person is familiar with the degree of skill ordinarily employed in the field of medicine on which he or she will testify.”
It is the trial court’s role to determine whether a prospective expert witness is qualified to provide expert testimony. Teague v. Kent General Hospital, 89 A.3d 42, 49 (Del. 2008). Trial courts have wide discretion in making the determination of whether a prospective expert witness is qualified to provide expert testimony upon the specific issue or issues for which the testimony is being offered. Id. The standard upon appellate review of trial courts’ determination is that of abuse of discretion. Id.
At least one Superior Court (New Castle County) ruled that the expert qualification requirement articulated in DC § 6854 must be read in conjunction with DC § 6853 (See Section VI of this article for a discussion on Affidavit of Merit) in making a determination whether a particular prospective expert witness is qualified. Friedel v. Osunkoya, 994 A.2d 746, 764 (Del. Super. 2010). To conclude otherwise, the court reasoned, would lead to the absurd result of an expert qualified to execute an Affidavit of Merit having to be more qualified than an expert witness qualified to offer opinion testimony in the case. Id.
In Friedel, the court determined that plaintiff’s expert was not qualified to provide opinion testimony on the standard of care in the case. All parties agreed that he was a recognized expert in pharmacology and pharmacy, but he was not a medical doctor. The court noted that DC § 6854 is ambiguous as to whether the expert in question, a pharmacist, is qualified as an expert to provide opinion testimony on the applicable standard of care governing a medical doctor’s prescribing a specific drug. Id. at 763.
However, he clearly is not qualified as an expert on the issue for purposes of executing an Affidavit of Merit under DC § 6853(c), which provides for the following factors to be met in order to be qualified as an expert:
- Licensed to practice medicine as of the date of the affidavit;
- In the three years immediately preceding the alleged negligent act has been engaged in the treatment of patients and/or in the teaching/academic side of medicine in the same or similar field of medicine as the defendant or defendants; and
- Board certified in the same or similar field of medicine if the defendant or defendants are Board certified.
It is important to note that as of the date of this article it does not appear that the Delaware Supreme Court has addressed the issue of whether the two statutes must be read together in determining whether a prospective expert medical witness is qualified to provide opinion testimony on the applicable standard of care. Strict adherence to the Superior Court’s reasoning in Friedel would seem to preclude any expert other than a medical doctor being capable of qualifying as an expert to provide opinion testimony on the standard of care in a medical malpractice case since at least two of the requirements set forth in DC § 6853(e) can be satisfied only by medical doctors. Yet the Friedel Court itself noted that “there is not a per se rule to be created here for all cases [on this issue], but it is a firm line.” Id. at 762-763.
Admissibility of Expert Testimony
Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries. Simply put, courts must guard against allowing so-called junk science into evidence. To achieve that objective, most states follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.
Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle. The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Admissibility of Expert Testimony in Delaware
The admissibility of expert witness testimony is governed by Rule 702 of the Delaware Uniform Rules of Evidence. It provides that:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Furthermore, the admissibility of expert witness testimony is subject to the Daubert standard, which the Delaware Supreme Court approvingly cited in the 1993 case Nelson v. State, 628 A.2d 69 (Del. 1993). In Nelson, the Court affirmed the trial court’s “rejection of Frye and its application of the Delaware Rules of Evidence for determining the general admissibility” of expert witness testimony. Id. at 74. The Delaware Supreme Court explained that its own recent cases are consistent with the U.S. Supreme Court’s decision in Daubert and approved the test utilized by the trial court, which largely mirrored the Daubert factors, wherein the court decided it needed to determine:
- that the expert witness was qualified under Rule 702;
- that the evidence offered was otherwise admissible, relevant, and reliable;
- that the bases for the opinion are those reasonably relied upon by experts in the field;
- that the specialized knowledge being offered will assist the trier of fact to understand the evidence or determine a fact in issue; and
- whether such evidence would create unfair prejudice, confuse the issues, or mislead the jury. Id.
Thus, for expert witness opinion testimony to be admissible, the trial court must determine that it is both (1) relevant and (2) reliable. For such testimony to be relevant, it must relate to an issue in the case and it must “assist the trier of fact to understand the evidence or to determine a fact issue.” Tumlinson v. Advanced Micro Devices, Inc., 81 A.3d 1264, 1269 (Del. 2013). To make a determination regarding reliability, the trial court is required to evaluate a non-exhaustive list of factors, which include:
- whether the expert opinion testimony can be, and has been, tested;
- whether it has been subjected to peer review and publication;
- its known or potential error rate; and
- whether it has attracted widespread acceptance within a relevant scientific community. Id.
The foregoing factors do not constitute a comprehensive or definitive checklist. Id. The trial judge in a particular case has broad discretion as to whether the enumerated Daubert factors represent a reasonable measure of reliability with respect to the issues in the case. Id. The Delaware Supreme Court emphasized, however, that the trial court’s inquiry must focus exclusively “on principles and methodology, not on the conclusions that they generate.” Id. at 1269-1270.
The Delaware Supreme Court expressly adopted Daubert in the 1999 case MG Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 522 (Del. 1999), in which it stated “we hereby adopt the holdings of Daubert and Carmichael [Kumho Tire] as the correct interpretation of Delaware Rule of Evidence 702.” The Le Beau Court explained that since Delaware Rule 702 “is identical to its federal counterpart, we rely upon the United States Supreme Court’s most recent authoritative interpretation of Federal Rule of Evidence 702.” Id.
That most recent case to which the Le Beau Court was referring to was Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Kumho Tire held that the basic gatekeeping role of trial courts first articulated in Daubert applies to all expert witness testimony on scientific, technical, or other specialized matters covered by Federal Rule of Evidence 702. Kumho Tire, 526 U.S. at 1174. Accordingly, Delaware state courts are similarly required to serve a gatekeeping role regarding all expert witness testimony regarding scientific, technical, or other specialized matters. Le Beau, 737 A.2d at 522.
VIII. Comparative Negligence
Modified Comparative Negligence with 51% Bar Rule
In all actions brought to recover damages for negligence which results in death or injury to person or property, the fact that the plaintiff may have been contributorily negligent shall not bar a recovery by the plaintiff or the plaintiff’s legal representative where such negligence was not greater than the negligence of the defendant or the combined negligence of all defendants against whom recovery is sought, but any damages awarded shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
Notice that the plaintiff may recover damages so long as his or her proportionate share of negligence is not greater than the defendant or defendants being sued by the plaintiff—the 51% bar rule. If the plaintiff’s percentage share of determined fault is greater than the total of all defendants (i.e., plaintiff’s contributory negligence is determined to be 51% or greater), then the plaintiff is not entitled to any recovery. DC § 8132. The Delaware Supreme Court explained the state’s comparative negligence statute as follows:
Pursuant to Delaware’s modified comparative negligence statute, if the plaintiff’s contributory negligence is 51% or greater, it is an absolute bar to recovery. If the plaintiff’s contributory negligence is 50% or less, however, the plaintiff is permitted to recover, although the recovery of damages is reduced proportionally. The Delaware comparative negligence statute unequivocally makes an attribution of negligence to the plaintiff a condition precedent to a denial or proportionate reduction in the damages the plaintiff would otherwise receive. [internal citations omitted] [emphasis in original] Asbestos Litigation v. Owens Corning, 669 A.2d 108, 112 (Del. 1995).
According to the Delaware Supreme Court, “questions as to the existence of negligence are reserved for the trier of fact.” Trievel v. Sabo, 714 A.2d 742, 745 (Del. 1998). In addition, under the comparative negligence statute, “the determination of the respective degrees of negligence attributable to the parties usually presents a question of fact for the jury.” Id.
Comparative negligence is a fault and damages allocation system. Under Delaware’s version, fault is determined and apportioned among the plaintiff and all defendants to the action, and how much compensation the plaintiff may recover is limited by his or her relative share of fault for causing the injury. DC § 8132. As instructed by the Delaware Supreme Court in Trievel, fault is determined and apportioned among the plaintiff and all defendants by the trier of fact, and how much compensation the plaintiff can recover is limited by his or her relative share of fault. DC § 8132.
The 51% bar rule means that if the plaintiff’s allocated percentage of fault is 51% or greater he or she is completely barred from recovering any damages. For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000. The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award. If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any recovery because Pennsylvania imposes the 51% bar rule.
Apportionment of Fault with Multiple Defendants
When multiple defendants are involved, there are two different ways in which the degree of fault comparison can be applied. Each approach can lead to vastly different results. The individual comparison approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s. For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery. Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.
On the other hand, the combined comparison approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought. In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants. Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.
By the express terms of Delaware’s comparative negligence statute, the combined comparison approach is utilized in the state. DC § 8132 provides that plaintiff’s own contributory negligence is not a bar to recovery “where such negligence was not greater than the negligence of the defendant or the combined negligence of all defendants against whom recovery is sought….” [emphasis supplied] The statute’s language clearly contemplates comparing the plaintiff’s share of fault with the aggregate determined fault of all defendants, which is the very definition of the combined comparison approach.
IX. Limitations on Attorney Fees
Contingent Fee Arrangement
Attorney fees are typically paid on a contingency basis in medical malpractice cases. That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award. If there is no recovery, then the attorney does not receive any payment as a legal fee. Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources. Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option. Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.
This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive. Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.
It should be noted that costs and expenses are separate from an attorney’s legal fee. Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions. Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.
Limitations on Attorney Fees in Delaware
Delaware law caps the amount of attorney fees in medical malpractice cases. Under DC § 6865(a), the “amount of the claimant’s attorneys’ fees may not exceed the amounts in the following schedule:
(1) 35% of the first $100,000 of damages;
(2) 25% of the next $100,000 of damages;
(3) 10% of the balance of any awarded damages.”
DC § 6865(b) grants clients “the right to elect to pay for the attorneys’ services on a mutually satisfactory per diem basis. The election, however, must be exercised in written form at the time of employment.”
X. Apologies and Gestures of Sympathy
Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit. This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.
Delaware is among the states that have enacted an “I’m Sorry” law. It is contained in DC § 4318(b) and is specific to healthcare providers. The statute shields healthcare providers who communicate expressions of sympathy by making them inadmissible as evidence of liability in an action for medical malpractice. The statute reads as follows:
Any and all statements, writings, gestures, or affirmations made by a health care provider or an employee of a health care provider that express apology (other than an expression or admission of liability or fault), sympathy, compassion, condolence, or benevolence relating to the pain, suffering, or death of a person as a result of an unanticipated outcome of medical care, that is made to the person, the person’s family, or a friend of the person or of the person’s family, with the exception of the admission of liability or fault, are inadmissible in a civil action that is brought against a health care provider.
It is important to note that expressions or admissions of liability of fault are not covered by the statute and are thus admissible as evidence in a medical malpractice action. DC § 4318(b).
In the only Delaware court case that has ruled upon the distinction between an apology and admission of fault, the Superior Court of Delaware in Bayhealth Medical Center, Inc. v. Hitchcock, C.A. No. K13C05-018 RBY (Jan. 23, 2015), concluded that the doctor’s statements “I am so sorry, would you please forgive me…” and “I am so sorry [for] what I have done and, believe me, I will be here by her side to take her back to where she was before” did not constitute admissions of fault. However, the doctor’s statement that the “cut” was a “miscalculation” did constitute an admission of fault, and thus the court ruled that it was admissible into evidence.
For purposes of the statute, the term ‘health care provider’ means “any person licensed or certified by the State of Delaware to deliver health care services, including, but not limited to, any physician, coordinated care organization, hospital, health care facility, dentist, nurse, optometrist, podiatrist, physical therapist, psychologist, chiropractor or pharmacist and an officer, employee or agent of such person acting in the course and scope of employment or agency related to health care services.” DC § 4318(a)(1). The term ‘unanticipated outcome’ “means the result of a medical treatment or procedure that differs from an expected medical result.” DC § 4318(a)(2).
Although expressions of apology or sympathy may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in Delaware understand that they can still be useful to potential plaintiffs. Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider. While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.
XI. Website Disclaimer
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 Layton v. Allen, 246 A.2d 794 (Del. 1968) (ruling that for purposes of the predecessor statute the limitations period commenced when the injured person became aware of the injury).
 In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard. For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.
 Although the statute uses the term ‘contributorily negligent,’ the Delaware Supreme Court refers to the doctrine embodied in the statute as ‘modified comparative negligence’ or ‘comparative negligence.’ Accordingly, the foregoing terms are used interchangeably in this article.