The affidavit of merit: Delaware’s front door
In Delaware, a medical negligence suit begins with proof in hand: the complaint must be accompanied by an affidavit of merit, signed by a qualified medical expert, stating there are reasonable grounds to believe each defendant breached the standard of care and caused injury (18 Del. C. § 6853). The affidavit is filed under seal with the expert’s credentials attached, and for a birth injury case the expert must be qualified in the relevant field: obstetrics, neonatology, or both.
The practical meaning for families: by the time a Delaware case is filed, a physician has already reviewed the fetal monitoring strips, delivery notes, and NICU records and found the claim medically credible. That review — not the courthouse — is the real first step, and it is the step we offer for free.
Delaware’s deadlines and the rule for children under six
Delaware’s malpractice statute of limitations is two years from the injury (18 Del. C. § 6856). An injury that could not reasonably have been discovered within those two years earns a third year from the date of injury, but three years is the outer wall for adults; Delaware has no open-ended discovery rule.
For the youngest patients, § 6856(4) adds a specific grace: a child injured before age six may file until the sixth birthday, if that gives more time than the standard periods. It is a genuine protection and a common trap in one sentence: six years old arrives quickly, and the parents’ own claims for medical expenses do not share even that extension. Compare this with other states’ rules in our statute of limitations guide, then get the Delaware answer for your facts from counsel.
Damages in Delaware: no caps
Delaware caps neither economic nor non-economic compensatory damages in medical negligence cases. The lifetime cost of care for a child with a permanent injury (nursing, therapy, equipment, lost earning capacity) and the human losses beside it are valued by the jury without a statutory ceiling. Punitive damages are a different matter: 18 Del. C. § 6855 confines them to cases of malicious intent or wilful/wanton misconduct, so they are rare in birth injury litigation. Case value here is built on the life-care plan.
How Delaware birth injury cases proceed
Not every birth injury is malpractice. Some injuries occur despite entirely appropriate care, and a candid expert review sometimes closes the question. The cases that go forward involve preventable failures: fetal distress without a timely response, a delayed cesarean, mismanaged shoulder dystocia leaving the arm paralysis known as Erb’s palsy, oxygen deprivation causing hypoxic-ischemic encephalopathy (HIE), or jaundice that progressed to kernicterus. Most Delaware deliveries happen at a handful of hospitals, led by the state’s largest birthing center in Newark, whose records, from cord gases to bilirubin logs, are where these cases are proven.
Birth Injury Advocate is an alliance of two named firms, Banville Law (New York and Washington, D.C.) and The Weitz Firm, LLC (Pennsylvania and New Jersey). Neither firm is licensed in Delaware, and we say so plainly, even though Delaware sits between their home states. When you contact us about a Delaware delivery, we connect your family with the alliance’s vetted network of local birth injury attorneys: Delaware-licensed lawyers who practice under § 6853’s affidavit requirement and know the Superior Court’s malpractice docket. Consultations are free, and a fee is owed only if there is a recovery.
Delaware’s under-six rule sounds generous until the sixth birthday is close. If the delivery left you with questions, a free records review answers them — and satisfies the expert step Delaware requires anyway.
Frequently asked questions
How long do I have to file a birth injury lawsuit in Delaware?
Two years from the injury, or three if it could not reasonably have been discovered in time (18 Del. C. § 6856). A child injured before age six may file until the sixth birthday if that is longer. Parents’ own claims do not share the child’s extension.
Does Delaware cap damages in birth injury cases?
No. Delaware has no cap on economic or non-economic compensatory damages in medical negligence cases. Punitive damages are limited by 18 Del. C. § 6855 to malicious or wilful/wanton misconduct.
What is Delaware’s affidavit of merit?
A sworn statement from a qualified medical expert, filed under seal with the complaint, affirming reasonable grounds to believe each defendant breached the standard of care and caused injury (18 Del. C. § 6853). Without it, a malpractice case cannot properly begin.
Sources
- 18 Del. C. § 6856: limitations on malpractice actions; provision for children under six.
- 18 Del. C. § 6853: affidavit of merit requirement and expert qualifications.
- 18 Del. C. § 6855: punitive damages standard in health care negligence actions.
This page is for general education and is not legal advice; statutes and cases are cited by name and number so you can verify them, and deadlines depend on facts specific to your case. Legal statements reflect the reviewing attorneys’ professional experience. Attorney advertising. Prior results do not guarantee a similar outcome.