Medical malpractice in Delaware

File within two years of the injury in most cases. If the injury could not reasonably be discovered in that period, you generally still must sue within three years of the injury. Have the expert affidavit ready when you file, or seek the single 60-day extension before time runs. A proper Notice of Intent to investigate can add up to 90 days.

General rule

No medical negligence action may be brought more than two years from the date the injury occurred.

18 Del. C. § 6856 (opens in a new tab)

Limited discovery

If the injury was unknown and could not reasonably have been discovered within those two years, the action may be brought before three years from the injury date, and not thereafter.

Young children

A minor under age 6 generally has until the later of the ordinary period or the minor's 6th birthday.

Investigation notice

A certified-mail Notice of Intent to investigate may toll the applicable limitations period for up to 90 days from the last day of the statute. Attach the notice if suit is filed during that window. The notice is optional. It is not a substitute for the affidavit of merit.

Separate child-abuse track

Child sexual abuse by a provider can follow a separate long-tail track under section 6856(3). That track is not the ordinary medical negligence clock.

Affidavit of merit

The complaint must be accompanied by an expert affidavit, plus a current curriculum vitae, as to each defendant, stating reasonable grounds that health care medical negligence occurred. The clerk shall refuse to docket the case without it, unless a timely extension motion is filed. One 60-day extension is available for good cause if the motion is timely. The expert must meet the qualification rules, including a same-or-similar field and board-certification matching when the defendant is board certified. The affidavit is filed under seal. It is unnecessary if the complaint alleges a rebuttable inference for a foreign object left unintentionally, an explosion or fire from a treatment substance, or the wrong patient, organ, limb, or body part.

18 Del. C. § 6853 (opens in a new tab)

18 Del. C. § 6856 (opens in a new tab)

These notes describe public legal patterns. They are not case counts, win rates, or rankings.

1. Affidavit defects stop the case early

   A missing or defective affidavit of merit is the early Delaware process trap. The clerk can refuse to docket the complaint.

   18 Del. C. § 6853 (opens in a new tab)

2. Private compensatory damages are evidence-driven

   Private-provider compensatory damages are not statute-capped. Proof of liability and damages carries the valuation.

   18 Del. C. ch. 68, subch. VI (opens in a new tab)

3. Fees and punitive damages still have rules

   The attorney-fee schedule and the malicious-intent or willful-or-wanton standard for punitive damages matter in settlement talks even though noneconomic damages are uncapped.

   18 Del. C. § 6865 (opens in a new tab)

Payment amounts vary by year, injury, and setting. This page does not state an average payout, a median, or a case count. To predict the payout for a Delaware case, use MedMalPredict AI - Medical Malpractice Outcome Prediction.

Outcomes turn on liability proof, damages evidence, affidavit quality, and any public-defendant immunity limits. Private compensatory damages do not face a statutory ceiling.

Official statute and agency pages checked September 22, 2026. First research pass on September 22, 2026. This summary still needs legal review before it is treated as legal advice. Chapter 68 of Title 18 governs private medical negligence actions. There is no statutory compensatory cap, economic or noneconomic, for private health care defendants. An affidavit of merit is required with the complaint under 18 Del. C. section 6853. The limitations period is generally two years from injury, with a limited discovery extension that still ends three years from injury, under section 6856. A certified-mail Notice of Intent to investigate may toll the period for up to 90 days. Attorney fees are scheduled in section 6865. Punitive damages require malicious intent or willful or wanton misconduct under section 6855. Public-entity claims may follow separate immunity rules. This page does not state a dollar limit for those government claims.

1. 18 Del. C. Chapter 68, Subchapter VI (sections 6853, 6855, and 6856) (opens in a new tab)Accessed September 22, 2026
2. 18 Del. C. Chapter 68, Subchapter VII (section 6865, attorney fees) (opens in a new tab)Accessed September 22, 2026