In Delaware, as in every state, filing a medical malpractice lawsuit can be a challenge, especially compared to other civil cases. For one thing, the medical and legal issues common to these kinds of claims are complex, and most cases include the introduction of extensive treatment records, plus the detailed testimony of medical experts.

But a Delaware medical malpractice plaintiff (that's the person bringing the lawsuit) also must comply with certain procedural rules right at the outset, besides filing the complaint (which sets out the allegations against the defendant health care provider). These safeguards have been put in place as part of tort reform efforts, which seek to discourage the filing of frivolous lawsuits, especially those related to injury. In this article, we'll summarize the most important of these rules in Delaware: the "affidavit of merit" requirement for most medical malpractice lawsuits.

The "Affidavit of Merit" Requirement for Delaware Medical Malpractice Lawsuits

According to Delaware Code Title 18 section 6853, any lawsuit alleging damages (injury) due to a health care provider's negligence in Delaware must be accompanied by an "affidavit of merit" from an expert witness.

This affidavit of merit must:

• be signed by someone who qualifies as an expert witness under Delaware law (more on these requirements in the next section)
• be accompanied by the witness's current "curriculum vitae" setting out his or her experience, expertise, and qualifications, and
• state that there are reasonable grounds to believe that there has been medical negligence committed by each named defendant health care provider (specifically, that there are reasonable grounds "to believe that the applicable standard of care was breached" by the health care provider named in the lawsuit, and that "the breach was a proximate cause" of the plaintiff's claimed injuries).

(Learn more: Do I Have a Medical Malpractice Case?)

If "good cause" is shown by the plaintiff, the court will grant a single 60-day extension for filing the affidavit of merit. According to section 6853, good cause "shall include, but not be limited to, the inability to obtain, despite reasonable efforts, relevant medical records for expert review."

If the affidavit does not accompany the initial complaint, and if a motion for extra time to file the affidavit has not been filed, then section 6853 requires the clerk of the court to refuse to file the lawsuit.

Expert Witness Qualifications in Delaware Medical Malpractice Cases

In order to qualify as an expert witness for purposes of the affidavit of merit in Delaware medical malpractice cases, the witness must:

• be licensed to practice medicine as of the date of the affidavit
• in the 3 years prior to the defendant's alleged negligence, have been engaged in treatment of patients and/or in teaching/academics in the same or similar field of medicine as the defendant, and
• if the defendant is certified, the witness must be certified in the same or similar field of medicine.

More Information on Delaware Medical Malpractice Cases

A Delaware medical malpractice plaintiff also needs to be aware of -- and be in compliance with -- the lawsuit filing deadline set by the Delaware Statute of Limitations for Medical Malpractice Lawsuits.

For more details on filing requirements and anything else related to a Delaware medical malpractice case -- and of course, for legal advice that's tailored to your specific situation -- it could be time to talk with an experienced Delaware medical malpractice lawyer.