Every day, millions of Americans visit doctors and other medical professionals to seek advice and treatment, including obtaining prescriptions. In many of those cases, the care that is administered meets or exceeds the reasonable standards that apply, based on the nature of the services and the training and experience of the medical professional. However, there are times when a mistake is made. When a person is the victim of a preventable medical error, the resulting harm can be devastating. The medical negligence can lead to expensive, ongoing treatment and rehabilitation, an inability to work, and debilitating pain and suffering. What can be even more traumatic for the victim and his family is if the time limits for bringing a legal action have passed and it is impossible to recover damages for the harm that was done.
Delaware Medial Malpractice Statute of Limitations
Statutes of limitations vary from state-to-state. In Delaware, these restrictive time periods are based on the type of legal action that is being filed. For a medical malpractice lawsuit, a person has two years from the date of the act or omission that resulted in the harm to the victim. (See Delaware Code Title 18, Section 6856). The negligence can involve an improper treatment, a failure to diagnose or treat, failure to disclose critical information, failure to prescribe the right medication, and other serious medical mistakes. In order to commence an action for medical malpractice within the requisite time period, it is necessary to file a complaint, as well as an affidavit of merit. The affidavit must be executed by a medical expert who has the knowledge to testify that the plaintiff has reasonable grounds to commence a medical malpractice case based on negligence that was committed by the defendant(s).
If a person does not commence the lawsuit within the proscribed two-year period, the courthouse doors do not automatically slam shut. Rather, the defendant(s) will move to have the action dismissed based on the failure to comply with the statute of limitations. The judge will grant this motion, regardless of how egregious the error committed by the medical professional.
Exceptions to the Two-Year Statute of Limitations in Delaware
Although the general time period in which to commence a medical malpractice case is two years, there is an exception if the victim was not aware of the injury and could not have discovered the harm with the exercise of reasonable efforts. It is important to note that this exception extends the time for a total of one year, so if the injury is discovered after this point, there is not means of recovery for the victim.
If the person who suffered from the harm was a minor child under the age of six years, the medical action may be brought within two years of the act or omission that caused the injury or by the minor’s sixth birthday, whichever time period is longer. This provides an additional time period for a very young victim who suffered as the result of a medical professional’s negligence.
There is another unique aspect to the law in Delaware. If a person believes that he has been injured as the result of medical malpractice, he may send notice to every person who may share in the responsibility for the injury that he intends to investigate the nature and cause of the injury from which he suffers. The notice must be provided in accordance with the terms of the statute, which means that it must be sent by certified mail, return receipt requested. The notice must include a description of the potential or actual harm being investigated, the name of the person who was impacted by the medical negligence, and the name of the defendant who specifically is receiving the notice. By doing this, he tolls, or freezes, the running of the statute of limitations for a period of 90 days.
Stern Law, PLLC Advocates for Those Injured by Medical Malpractice
Medical malpractice can lead to serious long-term injuries, and even death, which places incredible physical, emotional, and financial stress on the victim and his or her family. At Stern Law, PLLC, our attorney has spent more than 30 years working tirelessly to get our clients the results that they need in order to obtain necessary treatments, pay bills, install technological and mechanical accommodations, and compensate for the pain and suffering caused by the preventable mistake. One of the critical first steps is to ensure a timely filing of the lawsuit. In addition to our skilled legal services, we provide answers for anyone who has been harmed, or believes he may have been harmed, as the result of medical malpractice. We have knowledgeable representatives available to respond to questions 24 hours a day, seven days a week. Call us at 1-844-808-7529 or fill out an online contact form in order to learn how we can help you get through this difficult time.