Delaware's Statute of Limitations and Affidavit of Merit Requirement, Explained

Two rules in the Delaware Code decide whether a medical negligence case can be brought at all, regardless of how strong its merits are. One sets the deadline. The other requires a medical expert to vouch for the claim before it is even filed. Together they explain why these cases have to start earlier than most people expect.

This piece covers the timing and filing mechanics; for the broader subject — what counts as malpractice, the types of claims, and how damages work — see our guide to medical malpractice in Delaware.

Delaware’s two-year statute of limitations

Under 18 Del. C. § 6856, an action for damages against a health-care provider for personal injury arising out of medical negligence generally must be brought within two years of the date the injury occurred. The same section governs a personal injury that later results in death. Once the period expires, the claim is barred no matter what the records show.

Two features of that rule catch people out.

The first is what starts the clock. It runs from the date of the injury — the negligent act and its harm — not from the date you found out about it, not from the date a later provider explained what had gone wrong, and not from the date a hospital finished an internal review. In most cases the injury date is the date of the treatment at issue.

The second is how much has to happen inside those two years. A malpractice case cannot simply be filed on the last available day. Complete records must be obtained from every provider and facility involved, a qualified expert has to be located and has to review the file, and that expert has to execute a sworn affidavit (below) that gets filed with the complaint. Records requests alone can take weeks. Expert review takes longer, and an expert who declines the case sends you back to the start. A file that arrives at a lawyer’s office at twenty-two months is a hard case to file on time, and sometimes an impossible one.

There is a limited exception for an injury nobody could have known about. Where the injury was unknown during the initial two-year period and was not reasonably discoverable within it, § 6856 permits an action to be brought within a longer window — but in no event later than three years from the date of the injury. This is narrower than the discovery rules people are familiar with from other kinds of cases: it is an outer limit, not an open-ended extension, and it applies only where the injury genuinely could not have been discovered.

The statute also allows a limited tolling period — up to ninety days — where counsel sends each potential defendant a qualifying notice of intent to investigate by certified mail, return receipt requested, at the defendant’s regular place of business. This is a technical device with specific requirements, and it is not something to attempt without a lawyer; a defective notice does not toll anything.

The exception for young children

Section 6856 treats children under six differently. For a child under the age of six at the time of the injury, the action may be brought by the later of the ordinary statutory period or the child’s sixth birthday.

For an injury occurring at or near birth, that generally means the window runs until the child turns six rather than closing at age two. The reason is practical: the consequences of an injury to an infant frequently do not become apparent until the child misses developmental milestones, which can be years later.

Two things worth being clear about. The extension belongs to the child’s claim. A parent’s own claim — for a maternal injury, for example — follows the ordinary rule. And the extension is not a reason to wait. Records are complete and staff are locatable in year one in a way they are not in year five. Where a birth injury is involved, our fuller discussion is in birth injury and obstetric malpractice in Delaware.

What is an affidavit of merit?

Delaware does not allow a medical negligence complaint to be filed on a lawyer’s say-so. Under 18 Del. C. § 6853, with limited exceptions, the complaint must be accompanied by a notarized affidavit of merit signed by an expert witness, together with that expert’s curriculum vitae.

The affidavit must state that there are reasonable grounds to believe that health-care medical negligence was committed by each named defendant. That last part matters: it is per-defendant, not per-case. A claim against a surgeon, an anesthesiologist, and a hospital needs the affidavit to support all three.

The statute also specifies who may sign. The expert must be licensed to practice medicine as of the date of the affidavit; must, in the three years immediately preceding the alleged negligence, have been engaged in the treatment of patients or in the teaching or university-based research of the relevant medical field; must be engaged in the same or a similar field as the defendant; and, where the defendant is board certified, must be board certified in the same or a similar field.

The affidavit is filed under seal and is not, by itself, the expert testimony that will eventually be needed to prove the case at trial. It is a threshold filter — Delaware’s mechanism for keeping unsupported malpractice claims out of court.

This is the single biggest reason these cases require lead time. Finding an appropriately credentialed expert who will review the file and then put their name to a sworn statement is real work, and it happens before the case exists.

What happens if you miss the deadline

If the statutory period has run and no exception applies, the case cannot be brought. A defendant will move to dismiss on that ground, and the motion will ordinarily be granted without any consideration of whether the care was negligent. The same is true of a complaint filed without a compliant affidavit of merit — the case may be dismissed even where the underlying facts are strong.

That is a blunt outcome, and it is why the timing question deserves attention before anything else. It is not a reason to panic, though. Whether a deadline has actually passed depends on facts that are easy to get wrong from the outside: the correct injury date is not always obvious, treatment that continued over months complicates it, cases against multiple providers can involve different dates, claims involving a death follow their own framework, and the discovery and minority provisions may apply. Believing you are out of time is not the same as being out of time — and, just as importantly, believing you have plenty of time is not the same as having it.

The only way to know is to have someone review the actual records and dates.

Why you shouldn’t wait to talk to an attorney

Everything above compresses into one practical point: the useful window for acting is much shorter than the statutory one.

Working backward from a two-year deadline, a case realistically needs records requested and received, a full chronology built, an expert identified and retained, the expert’s review completed, and the affidavit executed and filed. Lawyers who handle these cases want that work starting in the first several months, not the final ones. Early contact also means records are pulled while they are complete, and while the people involved can still be identified from a shift roster.

There is no cost to asking. A consultation with a firm that handles medical negligence gets you a read on your dates and, usually, an early sense of whether the records support a claim at all.

If you are trying to decide who to call, see how to choose a medical malpractice attorney in Delaware. For the broader picture of how these claims work, start with our guide to medical malpractice in Delaware.

Murphy & Landon has represented injured people in Delaware since 1992. If you are unsure whether you are still in time, contact us and let us look at the dates.

This article is general information about Delaware law and is not legal advice. Reading it does not create an attorney-client relationship. Statutory deadlines have fact-specific exceptions this article does not cover, and nothing here should be relied on to calculate the deadline in an individual case. Speak with a lawyer about your circumstances.