Articles Posted in Delaware

A Delaware County jury awarded $5 million to a woman in a cancer misdiagnosis lawsuit. Tragically, the Plaintiff’s face was disfigured after multiple surgeries for cancer. The crux of her malpractice claim was that her dermatologist should have properly diagnosed the possibility of cancer at an earlier stage. There was apparently a year long delay between when the cancer should have been diagnosed and when it was diagnosed by another doctor.

The jury came back 10-2 which is odd for any malpractice lawyer who is used to the unanimous verdicts.

A doctor won a defense verdict in a failure to diagnose prostate cancer case in Delaware, according to Personal Injury Verdict Reviews. Plaintiff’s malpractice case was essentially that he developed prostate cancer and his doctor failed to properly and timely diagnose and treat the Plaintiff’s condition.

As is often the case, the defendant doctor fought the malpractice claim arguing that the real problem was that plaintiff did not follow-up as instructed. Not most but some juries in medical malpractice case look – consciously on subconsciously – for ways to blame splaintiffs for their own injuries. Patients who file medical malpractice claims leave themselves exposed if they do not follow their doctor’s instructions to the letter.

A tort reform group has named Delaware the #1 state in terms of legal climate in the country for the 5th consecutive year. Survey respondents assigned each state a grade for of 12 different factors affecting the states’ tort liability system. Delaware ranked at the very top for a host of categories: stringent venue requirements, treatment of class action cases, punitive damages, timeliness of summary judgment, discovery, judge’s impartiality (read: anti-plaintiff), and judge’s competence, and overall treatment of tort claims. The last category is actually “tort and contract cases” although they don’t really care about how contract cases are treated. This is just code for pretending this is not all about tort reform. Delaware did drop to 13th on jury predictability, and a 10th on jury fairness.

I don’t think history shows that Delaware juries are unreasonable. But many Delaware laws both directly and indirectly discourage tort lawsuits. One of my favorite Delaware laws involves lawyer’s fees in medical malpractice cases. Delaware does not place a limit on the damages a claimant may recover. But it caps plaintiffs’ medical malpractice lawyers’ fees at 35 percent of the first $100,000 in damages, 25 percent of the next $100,000, and 10 percent of any remaining award.

This law is great for those medical malpractice victims where they are able to find a lawyer to represent them. But many lawyers do not take medical malpractice cases in Delaware simply because of the decreased fees. It is not unlike Delaware passing a law raising minimum wage to $20 an hour. Some people would really fare well but others would lose their job. With this medical malpractice law, people lose the opportunity to bring just claims.

Most jurisdictions leave the the judge’s discretion whether to admit photographs from a car accident for the purpose of demonstrating the extend of the injuries of the occupants of the car. In Davis v. Maute, 770 A.2d. 36 (Del. 2001), the Supreme Court of Delaware took a minority view, holding that a party in a car accident may not directly argue that the seriousness of the injuries from an auto accident correlates to the extent of the damage to the cars, unless there is testimony from an expert witness that makes a correlation.

Accordingly, lawyers in Delaware may not argue by implication what the lawyer could not argue indirectly and attempt to suggest that the lack of property damage reflects the minor injuries.

This is great for Delaware plaintiffs’ lawyers in car accident cases who have minor property damage and claim injuries. Still, our lawyers prefer the majority rule because if you have a serious injury/serious impact case, you want to get the pictures to the jury to show the severity of the injuries and the Davis v. Maute holding can backfire on plaintiffs.