Delaware medical malpractice deadlines: how long you have to act.

Delaware gives 2 years. No action against a health-care provider for personal injury arising out of medical negligence, including injury that results in death, can be brought more than 2 years after “the date upon which such injury occurred” (18 Del. C. § 6856).

Around that rule, the statute adds a few others:

• Injuries that stayed hidden: if the injury was unknown and couldn’t have been discovered with reasonable diligence during those 2 years, the action can be brought within 3 years of the injury, and not after.
• Young children: a child under 6 has until the regular deadline or the 6th birthday, whichever is later.
• A notice of intent: sending one to each potential defendant by certified mail can extend the time by up to 90 days.
• The complaint itself must come with an expert’s affidavit of merit, or the court’s clerk won’t file it.

This guide explains what the statutes say. It isn’t legal advice, and the dates in any one situation turn on its facts, so an attorney licensed in Delaware should check yours.

Delaware’s statute runs the 2 years from the date the injury occurred (18 Del. C. § 6856). The main period doesn’t wait for the day you learned something went wrong. The only written exception for late discovery is the 3-year rule in the next section.

Pinning down when an injury “occurred” isn’t always simple. With a missed diagnosis or a complication that develops slowly, the date of the care, the date harm began, and the date it was noticed can all differ, and the parties may disagree about which one counts. An attorney decides that question from the records.

Who the rule covers. Chapter 68 defines a health-care provider as a person, corporation, facility, or institution licensed by Delaware under Title 24 (excluding Chapter 11) or Title 16 to provide health care or professional services, along with its officers, employees, and agents acting within the scope of their employment (18 Del. C. § 6801(4)). “Medical negligence” means any tort or breach of contract based on health care or professional services a provider gave, or should have given, to a patient (§ 6801(6)). A separate Title 10 section confirms that a health care malpractice claim, whether framed as a tort or a breach of contract, follows the time periods in section 6856 (10 Del. C. § 8128).

The statute gives extra time “solely in the event” that the injury, during the 2-year period, “was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured person.” In that case the action may be brought before 3 years from the date of the injury have passed, “and not thereafter” (18 Del. C. § 6856(1)).

Two points follow from that wording. First, the test is whether the injury could have been discovered with reasonable diligence, not only whether you actually knew. Second, the extra time still counts from the injury itself, so an injury discovered 2½ years after it happened leaves months, not years. Apart from the notice of intent, the rule for young children, and the rule for sexual abuse of a child patient, chapter 68’s limitation section sets no later date.

Section 6856 contains no separate written exception for fraud or concealment, and none for a foreign object left after surgery. A foreign object does matter for the affidavit of merit described below (§ 6853(b), (e)), but it doesn’t change the limitation periods in the text. If you believe records were altered or facts were kept from you, raise it with an attorney and keep copies of everything.

Delaware lets a plaintiff extend the limitation periods by sending a Notice of Intent to investigate. The statute says a plaintiff “may toll” the deadlines in section 6856 for up to 90 days this way (18 Del. C. § 6856(4)). Its requirements are specific:

• How it’s sent: to each potential defendant by certified mail, return receipt requested, at the defendant’s regular place of business.
• What it says: the name of each potential defendant, the potential plaintiff, and a brief description of the issue plaintiff’s counsel is investigating.
• How the 90 days count: they run from the last day of whichever limitation period in section 6856 applies, so they extend the 2-year, 3-year, or under-6 deadline rather than starting a new clock.
• Where it goes: the notice isn’t filed with the court. If the lawsuit is filed after the regular deadline but within the 90 days, a copy of the notice must be attached to the complaint to show the case was brought on time.

Because the statute calls for a notice to each potential defendant, identifying every provider involved matters. The notice is written as something counsel sends while investigating, which is one more reason to talk with an attorney before the last weeks of the deadline.

Under 6. A minor under the age of 6 has until the later of the regular time for bringing the action or the minor’s 6th birthday (18 Del. C. § 6856(2)). For a baby injured at or near birth, the 6th birthday will usually be the later date, since even the 3-year rule ends before then. The notice of intent can add up to 90 days to whichever deadline applies (§ 6856(4)).

Age 6 and older. Section 6856 has no separate rule for older children. Delaware’s general savings statute for “infancy” is written for the actions listed in sections 8101–8115 of Title 10 (10 Del. C. § 8116), while health care malpractice claims are tied to section 6856 (§ 8128). How those provisions apply to a teenager’s claim is a question for an attorney licensed in Delaware, so families of older children shouldn’t assume extra time exists.

Sexual abuse of a child patient. The statute separately allows a claim based on sexual abuse of a child patient by a health-care provider to be brought at any time after the abuse, when the acts would be a crime under the Delaware Code (§ 6856(3)a.). See birth injuries for more on concerns about a baby’s care.

The same general savings statute pauses limitation periods for a person under “incompetency of mind” when the claim accrues, until 3 years after the incompetency ends, but only for the actions listed in sections 8101–8115 of Title 10 (10 Del. C. § 8116). Chapter 68’s limitation section has no incapacity rule of its own (18 Del. C. § 6856).

Whether any extra time exists for an adult who couldn’t understand or act on their rights after medical care is therefore a question for an attorney. Raise it early rather than relying on it.

Which deadline. Section 6856 expressly covers “personal injury which results in death” and counts its 2 years from the date the injury occurred (18 Del. C. § 6856). Title 10 separately says a wrongful death action can’t be brought more than 2 years after the cause of action accrues (10 Del. C. § 8107), and it ties health care malpractice claims to section 6856 (§ 8128). When an injury and a later death fall on different dates, which date controls is a question for an attorney to answer early.

Who benefits. A wrongful death action may be maintained against a person whose wrongful act causes the death of another (10 Del. C. § 3722(a)). It is for the benefit of the spouse, parent, child, and siblings of the person who died, or, if there are none, any person related by blood or marriage. Only one wrongful death action lies for each death (§ 3724(a), (b), (e)).

The patient’s own claim. Separately, causes of action other than the few the statute excludes survive to the executors or administrators of the person who died, and a pending personal injury suit doesn’t end because the plaintiff dies; the personal representatives may be substituted (10 Del. C. §§ 3701 and 3704). How the two kinds of claims fit together, and who should file, is something to work out with an attorney soon after the death.

No health-care negligence lawsuit may be filed in Delaware unless the complaint is accompanied by an affidavit of merit for each defendant, signed by an expert witness and accompanied by the expert’s current curriculum vitae (18 Del. C. § 6853(a)(1)).

• What it states: the expert’s opinion that there are reasonable grounds to believe the applicable standard of care was breached by each named defendant and that the breach was a proximate cause of the injuries claimed.
• Who can sign: an expert licensed to practice medicine as of the affidavit’s date who, in the 3 years before the alleged negligent act, treated patients or taught in the same or a similar field as the defendant, and who is board certified in that field if the defendant is (with an exception for experts whose practice began before board certification existed in the specialty).
• How it’s filed: in a sealed envelope; it stays confidential and isn’t a public record.
• No affidavit needed when the complaint alleges one of the statute’s rebuttable inferences of negligence: a foreign object unintentionally left in the body after surgery, an explosion or fire from a substance used in treatment, or surgery on the wrong patient or the wrong organ, limb, or body part.

The rules on content, qualifications, and exceptions are in § 6853(b), (c), (e). A separate section says an expert on the standard of care must be familiar with the degree of skill ordinarily used in the field they testify about (§ 6854).

Why it matters for the deadline. If the affidavit doesn’t accompany the complaint and no motion to extend has been filed, the clerk must refuse to file the complaint, and it isn’t docketed. The court may grant a single 60-day extension on timely motion for good cause, which includes being unable to get relevant medical records despite reasonable efforts. The motion is timely only if filed on or before the date the plaintiff wants to extend, and the affidavit’s due date is paused while the court decides it. Defendants don’t have to respond until 20 days after the affidavit is filed (§ 6853(a)(1)–(4)).

The court. Delaware’s Superior Court has exclusive jurisdiction over civil actions alleging health care medical negligence (18 Del. C. § 6802(a)).

No review panel. The subchapter of chapter 68 that once created medical negligence review panels is marked repealed in the official code (18 Del. C. ch. 68). The notice of intent is optional (“may toll”), so the step that must happen at filing is the affidavit of merit or a timely extension motion (§ 6856(4); § 6853(a)).

If a timely case falls apart. When an action brought within the limitation period fails for certain reasons, such as service failing through unavoidable accident or an officer’s default, abatement, the death of a party, a matter of form, or reversal of a judgment on appeal, a new action for the same cause may be brought within 1 year (10 Del. C. § 8118(a)). Whether that applies to a particular dismissal is for an attorney to judge.

The Superior Court’s own civil rules govern service of the complaint. With an expert review, an affidavit, and possibly a notice of intent to fit in, preparation needs to start well before the deadline.

• Mark the date of the injury. In Delaware the main 2-year period usually runs from it, not from when you found out.
• Write down when you first suspected a problem, since it bears on the 3-year rule.
• Request your medical records early. An expert needs them for the affidavit of merit, and trouble getting them is the example of good cause the statute gives for an extension.
• List every provider and where the care happened, including any public or VA facility.
• Talk with an attorney licensed in Delaware soon. Only an attorney can say which deadline applies and whether a notice of intent makes sense.

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This guide summarizes the Delaware Code, as published on Delaware Code Online, and federal law, as read on October 27, 2026. It is general information, not legal advice.

• 18 Del. C. § 6801: definitions of health-care provider and medical negligence
• 18 Del. C. § 6802: Superior Court jurisdiction
• 18 Del. C. § 6853 and § 6854: affidavit of merit and expert testimony
• 18 Del. C. § 6856: 2-year rule, 3-year rule, children under 6, child sexual abuse, and notice of intent tolling
• 18 Del. C. ch. 68: chapter contents (review panels repealed)
• 10 Del. C. § 8107, § 8116, § 8118, § 8124, and § 8128: wrongful death period, savings provisions, Wilmington notice, and malpractice periods
• 10 Del. C. §§ 3701 and 3704: survival of actions
• 10 Del. C. §§ 3721–3725: wrongful death actions
• 10 Del. C. §§ 4001–4006 and §§ 4010–4013: State and County and Municipal Tort Claims Acts
• 28 U.S.C. § 2401(b): federal tort claims