Caps on Damages
In Delaware, there is no cap on medical malpractice awards. Punitive damages are allowed for personal injury and survival actions.
In actions for wrongful death, claimants may recover only compensatory damages. The recoverable losses include pecuniary benefits lost; loss of contributions for support; loss of parental, marital and household services, including the reasonable cost of providing the care of minor children; reasonable funeral expenses which may not exceed $7000; and mental anguish, but only for surviving parents, children, and spouse or person standing in loco parentis at the time of death. Punitive damages are not allowed in claims for wrongful death.
Caps on Attorneys Fees
Delaware limits the amount attorneys may collect as a contingency fee in connection with medical malpractice claims to 35 percent of the first $100,000 in damages, 25 percent of the next $100,000, and 10 percent of any remaining award. Del. Code Ann. tit. 18, § 6865 (1989). A party may also elect to pay his attorney on a per diem basis if a written contract providing for such compensation is drafted at the time of employment.
Statute of Limitations
In Delaware, lawsuits for medical malpractice that result in injury or wrongful death must be filed within two years of the date of the injury. However, if the injury cannot be discovered with reasonable diligence the claimant is afforded an additional year in which to file a lawsuit.
Delaware Nursing Home Operating Standards
Title 16, Section 3201 governs Delaware’s skilled and intermediate care nursing facilities that provide care to residents including resident beds, continuous nursing services, and health and treatment services for individuals who do not currently require continuous hospital care. Delaware law requires that care be provided in accordance with a physician’s orders, and it requires the competence of a registered nurse (RN).
Delaware Residents’ Rights
Delaware nursing home patients are guaranteed certain rights in order to promote the interests and well-being of the patients and residents in rest homes, nursing homes, boarding homes and other elder care institutions. See Title 16, Section 1121. Significantly, all nursing home residents have the right to receive considerate, respectful, and appropriate care, treatment and services recognizing each person’s basic personal and property rights which include dignity and individuality. This includes, among other things, the right to be free from chemical and physical restraints, and to receive a reasonable continuity of care.
Enforcement of Nursing Home Regulations
In Delaware, the Division of Long Term Care Residents Protection is responsible for the development of state regulations that apply to long term care facilities. Periodic state inspections are conducted to ensure compliance with these regulations.
Disclaimer: This article is for informational purposes only. It is not legal advice and should not be used as legal advice. The legal statutes, laws and procedures contained in this article may not be current and may have been revised since the time of publication or contain errors. An attorney can provide legal guidance only after reviewing the details of your individual case.