Delaware physicians pay higher medical malpractice premiums than physicians who practice in neighboring states.
No Tort Reform in Delaware
A major reason for the high premiums for physician malpractice insurance in Delaware is that the state has never implemented medical malpractice tort reform. Accordingly, there are no caps on non-economic damages such as pain or suffering nor are there caps on punitive awards.
Cases Undergo Medical Peer Review Before A Lawsuit is Filed
Delaware does have a system that requires a medical malpractice case first go before a medical peer review board before it goes to court. The board decides if the case has merit. Although the board's decision is usable at trial as evidence, it is not conclusive - only a jury can decide a court case. If the board renders an opinion that the defendant followed the normal standard of care , the injured party has to bring in an expert witness for the case to go to trial. In Delaware, the expert witness must practice the same specialty as the defendant.
Delaware Medical Malpractice Statute of Limitations
Delaware has a statute of limitations that runs for two years from the time the claimant alleges he or she suffered an injury from medical malpractice. However, the statute is three years if the injury went undiscovered by the plaintiff.
Comparative Negligence in Delaware Medical Malpractice
If the claimant had only partial liability for his or her injuries but it exceeds the joint negligence of all defendants the court stops the case from continuing. This is comparative negligence. In short, if the claimant is 60 percent responsible and the defendants have a 40 percent liability under comparative negligence the percent of liability by the plaintiff exceeds that of the defendants and the case is over.
Insurance Companies and Liability Limits for Delaware Medical Malpractice
Most physicians buy insurance with limits of $1 million/$3 million. Major malpractice carriers in Delaware include:
- Norcal Mutual Insurance Company
- AMS RRG
Each year more carriers enter the state despite the risks presented by the lack of tort reform.
Delaware Medical Malpractice Statutes Overview
Damage Award Limit or Cap
|No applicable statute
|Limits on Attorney Fees
No applicable statute.
Limit on attorneys fees is on a sliding scale based on awarded damages.
§9-21-12. In any action to recover damages for personal injury, injury to property, or wrongful death for which a judgment of $150,000 or more is entered, a post-judgment conference shall be held for the purpose of determining the viability of a voluntary agreement for payment of the judgment in periodic installments.
§9-21-13. In any legal action based upon a cause of action arising for personal injury, property damage, or wrongful death in which damages, if liability is proved, are likely to be in excess of $150,000, the parties shall consider the use of periodic payments as means of settlement.
|Patient Compensation or Injury Fund
|Medical or Peer Review Panels
§5-37.3-7. Medical peer review boards review malpractice claims before case goes to court.
|Statute of Limitations
||Two years from date of original injury or three years after discovery of injury as long as it was latent
|Joint Defendant Liability
||There is no separation of liability
||The expert witness must have knowledge in a similar field to defendant.
Rate Range by Specialty
This chart compares the range of possible state filed medical malpractice premium rates by admitted markets and a few Gallagher Select markets broken out by the top 15 specialties in Delaware.
USA Ranking Map
The map below provides a visual display of the nation and compares what a typical primary care physician might pay compared to each individual state and county. This research is based on the average rate for a single specialty, the most common limits in that state, and the mature claims made premium. The darker the blue, the higher the average premium, see how Delaware compares to other states.