How to Choose a Medical Malpractice Attorney in Delaware

Choosing a lawyer is difficult precisely when you are least equipped to do it — usually while still dealing with the injury that prompted the search. The advertising all sounds the same, and the differences that matter are not the ones being advertised.

This article sets out what actually distinguishes one malpractice attorney from another, and what to ask to find out. It is one part of a larger topic; for the full picture, see our guide to medical malpractice in Delaware.

Before you sign anything or talk to an insurer, it also helps to understand how a provider’s insurance and the claims process typically work — and why having insurance says nothing about whether malpractice occurred. Our Delaware medical malpractice guide covers that, along with what records to preserve before you call anyone.

What to look for in a medical malpractice attorney

Look for a firm that handles medical malpractice specifically, not general personal injury with malpractice on the list. Delaware requires an affidavit of merit from a qualified medical expert to be filed with the complaint, which means a firm needs standing relationships with physicians willing to review records and put their name to an opinion. That capability is built over years and cannot be improvised.

The gap between general injury work and malpractice work is wider than most people assume. A car accident case turns on facts a jury can evaluate from ordinary experience. A malpractice case turns on whether a physician’s judgment departed from professional norms — a question no lay person can answer, and one that requires an expert in the same specialty to establish.

That has practical consequences. The firm has to know which specialty the expert must come from, be able to find one who will review the file honestly, and be prepared to fund the review before knowing whether there is a case.

Questions to ask before you hire

You are interviewing them. A firm that treats the consultation as a chance to close you rather than assess your case is telling you something.

• How many medical malpractice cases do you handle, and how many have you taken to trial? Cases that resolve short of trial still resolve in the shadow of what would happen at one. A firm that never tries cases negotiates from a weaker position, and insurers know which firms those are.
• How do you work with medical experts? Ask who reviews the records, how the expert is selected, and at what stage. The answer reveals whether the expert relationship is real or theoretical.
• Who will actually handle my case? In some firms the lawyer you meet is not the lawyer who does the work.
• What happens if you decide I don’t have a case? A firm that will tell you no is more valuable than one that will not.
• How are fees and costs handled? Ask specifically about the difference between the fee and the case costs, and what happens to costs if the case is unsuccessful.

On that last point: malpractice cases are handled on a contingency fee, meaning the fee is a share of what is recovered and there is no fee if there is no recovery. Case costs — expert review, records, depositions, filing — are separate from the fee and can be substantial in a malpractice case, so it is worth understanding at the outset how a firm treats them. Any fee arrangement should be set out in writing before you sign.

Be sceptical of anyone who predicts what your case is worth at a first meeting. Nobody can know that before the records have been reviewed, and a confident number is a marketing device rather than an assessment. How damages actually get determined is set out in our guide to how damages are calculated.

Why Delaware-specific experience matters

Medical malpractice procedure is state-specific, and Delaware’s is particular.

The affidavit of merit is the clearest example. A Delaware malpractice complaint must be accompanied by an affidavit from a qualified medical expert stating there are reasonable grounds to believe the standard of care was breached. A complaint filed without it is vulnerable from the day it is filed — and because obtaining one takes time, the practical deadline for seeking advice is earlier than the statutory deadline.

The limitations period has its own structure, including a narrow allowance for injuries that could not reasonably have been discovered and a different rule for children injured before the age of six. Both are covered in our guide to Delaware’s statute of limitations and the affidavit of merit.

Beyond procedure, there is the practical knowledge that comes from working in one jurisdiction: the courts, the defense firms that appear repeatedly for the state’s hospital systems, and how these cases tend to run here.

What Murphy & Landon brings

Murphy & Landon is a Wilmington firm representing injured people across all three Delaware counties. Our attorneys have approximately 120 years of combined experience, and medical malpractice is core practice rather than a sideline — the firm has handled birth injury, surgical error, misdiagnosis, and hospital negligence claims, and we are prepared to try a case when trying it is what the case needs.

We will also tell you when you do not have one. That is not a small thing: an honest no, early, saves you from spending a year on a case that was never going to succeed.

Free consultation

The first conversation is free and carries no obligation. What you get from it is an assessment of whether your records show a departure from the standard of care that caused the harm, and a straight answer either way.

If you are still deciding whether what happened to you is a claim, our comparison of malpractice and a bad medical outcome works through the three questions that separate them, and what to do if you suspect medical malpractice covers the practical first steps. For the wider context, start with our guide to medical malpractice in Delaware.