MEDICAL MALPRACTICE LAWYERS BASED IN DELAWARE

A medication error is a preventable medication-related event causing inappropriate medication usage that may cause injury or death to the patient. The following definition of “medication error” is provided by the National Coordinating Council for Medication Error Reporting and Prevention (NCCMERP.org): “A medication error is any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the health care professional, patient, or consumer. Such events may be related to professional practice, health care products, procedure, and systems, including prescribing, order communication, product labeling, packaging, and nomenclature, compounding, distribution, administration, education, monitoring, and use.”

There are a number of different types of medication errors. These include:

(a) Wrong Patient – giving medication prescribed for one patient to the wrong patient,

(b) Wrong Medication – giving medication to the right patient, but giving the wrong medication (see the question about “look-alike, sound-alike drugs”, below),

(c) Time – giving the right medication to the right patient but doing it at the wrong time,

(d) Dosage – giving the right medication to the right patient at the right time, but giving the wrong amount or dosage of the drug, and

(e) Wrong Route of Administration – this is giving the right meds to the right patient, but giving it in the wrong way. The most routes include oral, sublingual. Intranasal, inhalation, intracutaneous, subcutaneous, intramuscular, intravenous, intra-arterial, intracardiac, intrathecal, rectal, vaginal, and topical.

There are thousands of prescription medications. Unfortunately, some look alike and some sound alike, which can lead to confusion for pharmacists, doctors, and nurses who are not careful about what they give patients.

Consider the case of Smith Maceus, who needed prescription eye drops after his cataract surgery. His doctor prescribed Durezol eye drops. But his Walgreens pharmacist dispensed Durasal, a prescription wart remover made of 26% salicylic acid. After dropping the acid into his eyes, the gentleman ended up filing a $1 Million medical malpractice lawsuit against Walgreens. See the New York Post write-up here. [https://nypost.com/2011/02/25/i-got-wart-rx-as-eyedrops-suit/] Durezol and Durasal are “look-alike, sound-alike drugs” that pharmacists should know never to mix up.

Another example is the case of Charlene Murphey. Ms. Murphey was supposed to receive Versed, an anti-anxiety drug, to help during an imaging scan. Unfortunately, her nurse, RaDonda Vaught, took the wrong medication out of the hospital’s dispensing cabinet. Nurse Vaught gave Ms. Murphey Vecuronium, a paralytic drug that anesthesiologists use during surgery. The Vecuronium was available to Nurse Vaught because she typed the letters v and e when dispensing the medication, and Vecuronium came up. As a result of the medication mix-up, Ms. Murphey died the next day. The case made national news because Nurse Vaught was indicted on felony criminal homicide charges.

It is difficult to put an exact estimate on the prevalence of medication errors resulting in injuries and death in the U.S. According to AARP’s article Medication Errors More Than Double [https://www.aarp.org/health/drugs-supplements/info-2017/medication-errors-rise-fd.html] “the Food and Drug Administration estimates that 1.3 million people are injured by medication errors annually in the U.S.”. In the year 2000, the Institute of Medicine (US) Committee on Quality of Health Care in America published a study titled To Err is Human: Building a Safer Health System. According to that study, each year as many as 98,000 patients die as a result of medication errors that occur in hospitals. https://pubmed.ncbi.nlm.nih.gov/25077248/ What is very clear is that medication errors are one of the leading types of healthcare errors or mistakes that result in patient injury and death. There is no reliable reported data for State of Delaware of which we are aware.

Delaware law gives the requirements for proper administration of medication right in the definition of that phrase in Title 19 Del.C. § 1902(a). There, Delaware law states that the proper way to administer medicine is through a process whereby the nurse verifies the properly prescribed drug order, removes the individual dose from a previously dispensed, properly labeled container, assesses the patient’s status to assure the drug is given as prescribed and there are no unknown contraindication to the use of the drug or dosage that has been prescribed, gives the individual dose to the proper patient, records the time and dose given, and assesses the patient for possible untoward side effects.

Yes. A medication error committed by a healthcare professional is considered a form of healthcare malpractice or medical malpractice, and will be subject to the special requirements of 18 Del.C. Chapter 68.

That Chapter actually does not talk in terms of medical malpractice. The Delaware Code refers to “health-care medical negligence” in the title of Chapter 68. It also speaks in terms of plain “medical negligence” which is defined in Section 6801(7) as follows: “’Medical negligence’ means any tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health-care provider to a patient. The standard of skill and care required of every health-care provider in rendering professional services or health care to a patient shall be that degree of skill and care ordinarily employed in the same or similar field of medicine as defendant, and the use of reasonable care and diligence.”

So, an error by a pharmacist, doctor, or nurse involving medication would certainly be considered “medical negligence” under Delaware law, and it would certainly be considered “medical malpractice” to use the more common terminology.

The short answer to this question is yes, in Delaware a pharmacist can certainly be held legally responsible for injuries resulting from injuries caused by a contraindicated medication.

First, what is a contraindication?

According to MedLinePlus [https://medlineplus.gov/ency/article/002314.htm], a contraindication is a situation where a drug or a procedure should not be used due to the risk of harm to the patient. There are two types of contraindications: relative and absolute. With a relative contraindication, two drugs or procedures should not be used together or should be used together with caution because the mixture could be harmful. With an absolute contraindication, one medication or procedure itself could cause harm and so it should be avoided.

What are examples of drugs with a known contraindication?

One example of a relative contraindication is that Xanax (alprazolam) is contraindicated with opioid painkillers. Xanax is a benzodiazepine used to treat anxiety and panic. Using Xanax in combination with central nervous system depressants such as opioid painkillers can result in respiratory depression, low blood pressure and even death.

One example of an absolute contraindication is that Oxycodone is contraindicated in patients who suffer from underlying pulmonary diseases causing respiratory distress. Oxycodone is an opioid pain medication that is known to depress the central nervous system. In a patient with preexisting respiratory distress, this medication could cause the patient to stop breathing and suffer very serious injuries and even death.

What is the role of the Delaware pharmacist in identifying contraindications?

Rule 5.1.5 of the Delaware Board of Pharmacy Rules requires a pharmacist dispensing medication to complete a “prospective drug review”. That requires the pharmacist to screen for potential problems that could be caused by the medication. These problems include “therapeutic duplication”, “drug-drug interactions” (which means relative contraindications), drug-disease contraindications if a disease is known to the pharmacist, wrong dose, wrong duration, potential drug-allergies the patient may suffer, and the risk of abuse or misuse.

Further, Rule 5.1.10.4 of the Delaware Board of Pharmacy Rules requires the pharmacist to check the patient’s profile record there at the pharmacy to make sure any drugs to be dispensed will not create a harmful drug interaction or reaction.

So, it is primarily the role of the pharmacist to screen for problems, including contraindications.

Yes. Delaware pharmacists are required by law to label the prescription medications they dispense. Specifically, 24 Del.C. § 2522(b) states that “A pharmacist shall affix to every container in which a drug is dispensed a label containing the following information: (1) Prescription number; (2) The date the prescription is dispensed; (3) Patient’s full name; (4) Brand or established name and strength of the drug to the extent that it can be measured; (5) Practitioner’s directions as found on the prescription;

(6) Practitioner’s name; (7) Name and address of the dispensing pharmacy or practitioner.” If a pharmacist mislabels a container and, as a result, a patient takes the wrong medication and is injured or killed, the pharmacist can and should be held responsible in a court of law.

The Physician’s Desk Reference may be used to establish the acceptable standard of care for medication treatment; however, a physician may prescribe outside of the guidelines of the PDR when it is deemed reasonable and necessary. Ashley-Fry v. Bayhealth Medical Center, 2005 WL 730325 at *3 (Del. 2005).

Generally, Delaware Law requires a patient or the family of the patient who was harmed or killed by a physician’s, nurse’s, or pharmacist’s medication error to file suit on their medication error medical malpractice case within two years from the date of the negligent act or omission.

There are several permutations on this general rule. For example, if the injury was unknown and could not reasonably have been discovered by the injured person within the two years, one additional year is tacked on to the two-year limitations period. Another example is that a minor under the age of 6 years shall have 3 years from the day of injury or until the minor’s 6th birthday in which to bring a lawsuit.

Also, Delaware law provides a procedure to extend the limitations period by 90 days through the use of a Notice of Intent sent via certified mail to the defendants before the expiration of the original statute of limitations period.

If you have questions about the application of Delaware’s healthcare malpractice statute of limitations to your medication error lawsuit claims, please contact us for assistance with your case.

Yes. The Board of Pharmacy licenses and regulates pharmacists in Delaware, the Board of Nursing licenses and regulates nurses, and the Board of Medical Licensure and Discipline licenses and regulates physicians. In addition, the Controlled Substances Advisory Committee [https://dpr.delaware.gov/boards/controlledsubstances/] assists the Delaware Secretary of State with prescribers’ controlled substances registrations. A Complaint against a professional licenses and regulated by these boards may be filed with the Investigative Unit of the Delaware Division of Professional Regulation. This website describes how citizens can file a complaint against a Delaware professional who violates the law or the rules of their profession:

Filing A Complaint

It is possible that any kind of medical condition can be misdiagnosed or go undiagnosed. Some conditions which are misdiagnosed more than others – with catastrophic consequences – include cancer, heart attack, stroke, pulmonary embolism, aortic dissection, and aneurysm. We find that many of our clients who suffer as a result of a missed diagnosis come to us after suffering inappropriate care from inexperienced and hurried staff at local hospital ERs and urgent care walk-in clinics.

To our knowledge, there are no Delaware-specific studies. According to a recent national survey, diagnostic errors affect at least 1 in 20 U.S. adults, which translates into approximately 12 million U.S. adults every year. See The frequency of diagnostic errors in outpatient care: estimations from three large observational studies involving US adult populations, BMJ Quality & Safety (17 April, 2014), Hardeep Singh, Ashley N. D. Meyer, Eric J. Thomas, https://qualitysafety.bmj.com/content/23/9/727.

Yes. It is the responsibility of the doctor to respond to cues which would indicate the need for testing. If the doctor fails to exercise proper care in ordering the proper tests after taking a history and completing a physical examination, this could be grounds for a failure to diagnose lawsuit.

Much of the law surrounding failure to diagnose cases is within the common law, or the law that is made through court cases. Failure to diagnose cases are conducted under a theory of negligence, which is a common law theory. Medical negligence and malpractice claims are governing by Title 18 Chapter 68 Health-Care Medical Negligence Insurance and Litigation. Section 6801(7) defines “medical negligence” to mean “any tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health-care provider to a patient.” When a medical condition or illness goes undiagnosed or improperly diagnosed, the proper health care “which should have been rendered” oftentimes is not rendered.

Under Delaware law, evidence in a medical negligence case may include medical charts, X-rays and other imaging studies, and laboratory tests. See for example Title 18 Delaware Code, Section 6807. In addition, it is often very, very helpful for the client to write out a detailed narrative in chronological order of everything that happened and everything stated to and by nurses and doctors during the course of the medical treatment. Further, after an initial consultation, the attorney will likely provide guidance about the collection of materials and records that could be of value to the case.

Yes, insurance companies might pressure doctors to not order “unnecessary” tests. However, despite this pressure, a doctor is still required to treat patients within the applicable standard of care. This is so regardless of the potential cost of necessary testing. Failure to administer proper testing resulting in a missed diagnosis could create liability on the part of the physician. It is no excuse that the health insurer looks unfavorably on physicians who “over-utilize” tests such as MRI’s and CT scans.

Delaware’s comparative negligence statute explains that negligence of a plaintiff will not prevent recovery in a lawsuit if the negligence of the plaintiff was equal to or less than that of the defendant or all defendants combined. In cases where contributory negligence exists, however, damages are calculated proportionally so as to exclude recovery in proportion to the plaintiff’s negligence. Title 10 Del.C. 8132 provides as follows:

“In all actions brought to recover damages for negligence which results in death or injury to person or property, the fact that the plaintiff may have been contributorily negligent shall not bar a recovery by the plaintiff or the plaintiff’s legal representative where such negligence was not greater than the negligence of the defendant or the combined negligence of all defendants against whom recovery is sought, but any damages awarded shall be diminished in proportion to the amount of negligence attributed to the plaintiff.”

The Delaware Superior Court has held that comparative negligence can be used in a medical negligence case that is “factually appropriate[.]” Nutter v. Christiana Care Health Services, Inc., C.A. No. N. 10C-09-067 JAP, 2014 WL 1760342, at *1 (Del. Super. Ct. 2014).

In fact, our Delaware Superior Court Civil Pattern Jury Instructions contain a pattern instruction for Plaintiff’s comparative fault in failing to advise the defendant doctor: “A patient must use reasonable care to truthfully describe his/her symptoms to a healthcare provider.”

Yes, there are cases where the doctor is on the right track in testing for and diagnosing the condition appropriately, then drops the ball and fails to communicate the diagnosis and treatment recommendations to the patient. The physician’s failure to follow-through with the evaluation and treatment may be a basis for a medical malpractice lawsuit in the State of Delaware.

Yes. The judicial system requires that a lawsuit be conducted for the goal of righting a wrong, so if no wrong has occurred, no lawsuit can proceed. We are contacted all the time by people who were not properly worked up and diagnosed at the local hospital emergency room or by their doctor, but who have suffered no injury as a result. To file a lawsuit for failure to diagnose or delay in diagnosis, you must be able to prove that injury or death resulted from that failure or delay.

Yes. Under Delaware law, a failure to diagnose healthcare negligence lawsuit must be accompanied by an Affidavit of Merit as to each defendant signed by an expert witness. Each Affidavit of Merit must state there are reasonable grounds to believe that there has been healthcare negligence committed by each defendant. The Affidavit of Merit is required merely to file the failure to diagnose lawsuit.

Once the suit is filed, the identities of Plaintiff’s experts and the substance of their opinions must be disclosed to the Defendants. Further, when the case proceeds to trial, expert witnesses must be called to testify in order to establish proof of the standard of care applicable to the medical provider Defendants, and to establish the deviation from that standard of care. (That’s a fancy way of saying experts must testify that the defendant was careless or otherwise acted in a wrongful manner resulting in the patient’s injury or death).

The answer to this question is, it depends on the facts of the specific case. Generally, there is a case in Delaware that indicates that “a physician who refers a patient to a specialist because the patient’s ailment is or may be outside his field of competence, is not liable for negligence of the physician to whom referral is made.” Spicer v. Osunkoya, 32 A.3d 347, 350 (Del. 2011).

However, this would not be the case if the primary care physician was aware that the specialist was incompetent, or acted in concert with the specialist. Id.

This issue comes up not only in situations where primary care doctors refer to specialists, but where patients are admitted to hospital by the staff hospitalist who then calls a consult with a specialist such as a cardiologist or neurosurgeon. Referral to a higher-level provider may absolve a primary care physician or a mid-level provider of legal responsibility for failing to diagnose his or her patient, but this determination is one that is best made by a qualified medical malpractice attorney in the evaluation stage of the lawsuit claim.

The method looks at the possible disorders that could be causing one’s symptoms. When trying to diagnose a patient, doctors often make a list of possible diagnoses in order of probability and test them by asking patients questions and through further observations. The physician looks to rule out possible illnesses or injuries through this process leading to the overall diagnosis. The differential diagnosis method is an expected procedure of a doctor who is acting within the standard of care which is required by the profession.

Delaware Law states the standard of skill and care required of every health-care provider in rendering professional services or health care to a patient shall be that degree of skill and care ordinarily employed in the same or similar field of medicine as defendant, and the use of reasonable care and diligence. Title 18 Del.C. § 6801.

As in any negligence lawsuit, it must be proven that the conduct of the defendant proximately caused the injury to the plaintiff. Proximate cause is established via a showing of “a reasonable connection” between the injury suffered and the actions (or failures to act) of the defendant. See Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991). Delaware uses the ‘but for’ test to determine proximate causation. Id. at 1097. The ‘but-for’ test simply means that causation is established when the injury which occurred would not have occurred absent the actions of the negligent party. Id. Proximate cause is an issue to be determined by the jury. Id. at 1098. So it is very important to prove that but for the defendant’s negligence in failing to timely and properly diagnose the condition, the injury or death would not have occurred.

A physician who mistakenly diagnoses a physical condition as a psychological condition can be held liable for failure to timely diagnose. Whether this kind of situation can be successfully pursued in a negligence action hinges on whether a doctor, in diagnosing a physical condition as a psychological one, was acting within the appropriate standard of care.

Evidence that the doctor deviated from the required standard of care in making a wrong diagnosis or missing a diagnosis altogether can be used. If it is able to be established that the amount of time or lack thereof was a deviation from the required standard of care of a physician, this can be used as evidence to prove the negligence claim.

A bedsore is an ulcer that occurs as a result of pressure and a lack of blood flow to an area of the body for a certain extended time. When these circumstances occur, the skin in the area where the ulcer occurs eventually dies. Bedsores have the potential to spread to muscle and bone. Areas of the body affected by bedsores can include the knees, back of head, shoulder blades, buttocks, hips, and heels.

There are four stages of bed sores. During the first stage, the skin feels warm, and the individual may feel a burning, painful, or itching sensation. On an individual with a dark skin tone, the area appears blue or purple, and on an individual with a light skin tone, the area appears red. During the second stage, the skin begins to take on the appearance of an open wound. Pain and discoloration in the affected area are associated with this stage. During the third stage, the bedsore takes on the appearance of a crater because of internal damage. During the fourth stage, the damage is severe. Risk of infection is high, and the damage may have spread to internal areas, including muscle, bone, and tendons.

To sue a surgeon or anesthesiologist, you generally need to prove medical malpractice. This involves establishing that the healthcare professional deviated from the standard of care and caused harm. First, consult with a medical malpractice attorney from our law firm to evaluate your case. We can help gather necessary medical records, expert testimony, and evidence of negligence or error.

According to information published by Johns Hopkins University, bedsores can be prevented by inspection of skin areas that show redness. This should be done every day with close attention paid to bony areas. Other methods suggested include turning or repositioning residents every two hours; remaining upright and straight while seated in a wheelchair and changing the resident’s position every 15 minutes; giving patients in wheelchairs soft padding to reduce pressure on certain areas; ensuring good skin care to keep areas clean and dry; and serving proper nutrition to promote healing.

Suing your surgeon is unlikely to end his or her career. Surgeons’ careers do not typically come to an end as a result of one isolated case of malpractice, regardless of how bad the outcome is. Filing a lawsuit against a surgeon will result in a court case, and the end result of the court case may be a civil monetary judgment or a settlement. If the surgeon’s insurance company pays out an award, the surgeon will be reported to the government agency responsible for licensing surgeons, the Delaware Board of Medical Licensure and Discipline. The Board could take action with regard to the surgeon’s license to practice. However, in the absence of truly egregious wrongdoing or a pattern of repeated similar mistakes, it is unlikely that the BMLD would revoke the surgeon’s license, thereby ending his career.

Susan* was admitted to a Delaware hospital after being seen in the emergency room for a suspected heart attack. She underwent a cardiac catheterization. During the procedure, the surgeon accidentally perforated her coronary artery but did not realize his mistake. Susan’s blood pressure dropped. Had the surgeon ordered a transthoracic echocardiogram, he would have seen that blood was escaping and causing a cardiac tamponade. The pressure on her heart from that escaped blood caused Susan’s heart to stop, and she died.

Bob* was diagnosed with colon cancer and admitted to the hospital for colon resection (a surgery to remove the part of the colon containing the cancer). His surgeon successfully removed the section of the bowel containing the cancerous lesion and joined the open ends of the bowel together to form an anastomosis. The surgeon neglected to test the anastomosis to make sure it was air or water tight and as a result, contents of the bowel seeped out into Bob’s peritoneal cavity and caused a severe infection called sepsis. Despite signs and symptoms of infection, the treatment team delayed taking any action for several days. By the time they performed a washout of his abdominal cavity and started antibiotics, the infection had spread too far to be reversed, and Bob died.

Shannon* underwent surgery for a torn meniscus in her left knee after a fall accident in her home. Before surgery, she saw her orthopedic surgeon in his office, and she complained about the pain in her left knee. The surgeon examined and tested the left knee. In the operating room, however, the orthopedic surgeon somehow confused the left knee with the right knee and operated on the meniscus in the wrong knee. When he realized the mistake, and before Shannon came out of anesthesia, he performed the meniscal repair on the left knee. When she woke up, she was surprised to find both knees had been operated on.

Scott* was a 34 year old man who sustained an injury to his right testicle that resulted in scarring, atrophy, and constant pain. His urologist recommended removing the testicle in an operation called an orchiectomy. In the operating room, the surgeon mistakenly removed the left testicle. Scott was left with one damaged, constantly painful testicle and significant and permanent sexual disfunction.

Jennifer* gave birth to a beautiful baby boy via cesarean section. Although her incision healed well, she experienced abdominal bloating, fever, and nausea. Her doctor sent her for an imaging scan and discovered a foreign body remaining in her abdomen. Laparoscopic surgery was performed and the surgeon retrieved a surgical sponge or a gossypiboma that had been left behind during her c-section.

Bill* was scheduled for a routine colonoscopy in an outpatient ambulatory surgery center. During the procedure, a nurse anesthetist placed him under general sedation. The anesthetist administered a dosage of anesthesia medication that was several times the strength that was indicated, effectively overdosing him, resulting in hypoxia (lack of oxygen). The nurse anesthetist also failed to carefully monitor Bill’s vital signs, and so he suffered hypoxia for some time resulting in permanent brain damage.

Carl* underwent surgery to remove a basal cell carcinoma from his nose. He was fitted with a nasal cannula for oxygen administration. The surgeon asked the anesthesiologist to cut the oxygen supply prior to use of a Bovie electrocautery device, because oxygen administration during use of electrocautery poses a known, significant risk of fire. The anesthesiologist did terminate the oxygen flow but did not wait for a minute to pass, as required by the surgery center’s policies and procedures, before greenlighting the use of the electrocautery device. As a result, the oxygen remaining in the patient’s airway and nasal cannula fed a flash fire when the surgeon began cauterizing, and Carl sustained severe burns on his face.

*All patient names and certain facts have been changed to protect the identity of the individuals.

Nursing homes may discharge a resident because the resident poses a health or safety risk to others in the nursing home. 16 Del.C. § 1127. The facility must develop and implement written policies and procedures that ensure the reporting of crimes. 42 CFR 483.12. A nursing home should take reasonable steps to protect residents from residents who exhibit violent tendencies.

Delaware law provides that facilities must report physical abuse resulting in injury occurring between residents or, if without, between a staff member or other person and a resident. 9.8.1.1. The occurrence or event must be reported immediately to the Division of Long-Term Care Residents Protection. 2.15.

Delaware regulations define supervision as providing oversight to ensure safety, among other things. 2.20. Supervision of nursing is a duty of the director of nursing. 5.4.2.2. This regulation should be read to create a duty for nursing home staff to ensure that residents are safe, including safety from threats of other residents. Other states have found nursing homes liable in cases where residents were harmed by other residents. The question is whether the risk of harm is foreseeable and what action the home took in order to protect residents from the known danger posed by the problem resident.

The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. 42 CFR § 483.12. Additionally, the facility must not employ individuals who have been found guilty of abuse, neglect, exploitation, or mistreatment by a court of law. Facilities cannot employ individuals who have had a finding entered into a state nurse aid registry concerning abuse/ neglect OR have had a disciplinary action in effect against his or her professional license by a state licensure body. 42 CFR § 483.12.

Facilities must develop and implement written policies and procedures that prohibit abuse/neglect and establish policies and procedures for investigating such allegations. Additionally, the facility must develop and implement written policies and procedures that ensure the reporting of crimes. 42 CFR § 483.12.

Facilities must provide training to their staff that, at a minimum, educates the staff on activities that constitute procedures for reporting abuse and neglect. 42 CFR § 483.95.

Delaware law provides that the facility shall have written personnel policies and procedures. The personnel records shall be kept current and available for each employee and include results of Adult Abuse Registry checks. 5.5.5. Additionally, physical abuse with or without injury if staff-to-resident must be reported. 9.8.1.3.

Not necessarily. It will be important for you to remember precisely what the surgeon said. Delaware has a “Compassionate communication” law that says, generally, expressions of sorrow are not admissible in a lawsuit against the healthcare provider. The statute can be found at Title 10 Delaware Code Section 4318(b) and says:

Any and all statements, writings, gestures, or affirmations made by a health care provider or an employee of a health care provider that express apology (other than an expression or admission of liability or fault), sympathy, compassion, condolence, or benevolence relating to the pain, suffering, or death of a person as a result of an unanticipated outcome of medical care, that is made to the person, the person’s family, or a friend of the person or of the person’s family, with the exception of the admission of liability or fault, are inadmissible in a civil action that is brought against a health care provider.

So a statement by the surgeon that “I’m sorry” may or may not be admissible in court. “I’m sorry for your loss” would likely not be admissible. But “I’m sorry for failing to protect the patient’s airway” probably would be.

Often in surgical malpractice cases, we are not the first law firm contacted in the search for representation. There seems to be a theme – clients who believe they may have a legitimate case contact numerous law firms but can’t find an attorney willing to take their case. As unfortunate as it is, there are probably three main reasons for this phenomenon.

First, folks contact the wrong lawyers. Many lawyers – even ones that advertise for personal injury cases – do not specialize in medical malpractice cases. Many so-called personal injury lawyers are not going to review a complex surgical malpractice case because it’s really not what they do. If you are contacting the attorney who did your real estate settlement when you bought your house or the attorney who represented your nephew when he was arrested for marijuana possession in Dewey last summer, you’re probably barking up the wrong tree. Further, a lot of people think they are doing the right thing by contacting an attorney in Philadelphia or Baltimore for assistance with a Delaware case. That makes sense if you think about it — if you need a top attorney, you might look in a large city. But Pennsylvania and Maryland lawyers can’t file lawsuits in Delaware. You have to hire a Delaware attorney to file a lawsuit in Delaware.

Second, surgical malpractice cases in Delaware are expensive and time-consuming to investigate. To file a lawsuit, in most malpractice lawsuits, Delaware law requires the Plaintiff to obtain and file an Affidavit of Merit from another physician or surgeon in the same specialty as the defendant. Many attorneys do not have the time or financial resources to find a consulting surgeon and secure that Affidavit of Merit. Completing a preliminary investigation into the case can be a break-the-bank financial obligation for solo practitioners and small law firm attorneys. You must consult an attorney who has adequate financial resources to investigate and prosecute the case.

Third, you have to act fast if you want an attorney to be willing to review and accept your case. Obtaining records, identifying all potentially responsible parties, obtaining the Affidavit(s) of Merit, and drafting and filing a lawsuit are things that take a lot of a medical malpractice attorney’s time. As a result, most attorneys hesitate to get involved in Delaware medical malpractice cases that are brought to them for review late in the game. This makes sense when you consider that Delaware law generally sets a short two-year statute of limitations on claims involving medical malpractice. That limitation period can be extended by ninety days by strictly following the Notice of Intent to Investigate procedure set forth in the Delaware Code, Title 18, Section 6856(4). To make matters worse, in most medical malpractice cases, Delaware law also requires that an Affidavit of Merit be filed with the Complaint (Title 18, Section 6853). If an appropriate Motion is timely filed under Title 18 Delaware Code, Section 6853(a)(2), the Court may grant an extension of sixty days to file the Affidavit of Merit.

The lesson here (if there is a lesson) is that if you think you or your loved one may have been a victim of medical malpractice, you must take swift action to locate the best Delaware medical malpractice attorney possible as soon as possible.