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The process for filing a lawsuit in Delaware on behalf of your child with cerebral palsy must proceed in steps dictated by state and federal law. Each state has its laws to govern medical malpractice lawsuits, while suits over discrimination or disability rights violations may follow state laws or federal laws, depending on the situation.
In either case, the process can be long, complicated, and confusing. If you don’t understand the process and the laws, it’s easy to make mistakes that could ruin your chance of recovering damages and getting justice for your child. A Delaware cerebral palsy lawyer is your best ally in starting, following through with, and completing the legal process.
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What Kind of Lawsuits Can I File for My Child in Delaware?
In any state, including Delaware, there are two main types of cases you might consider with a child that has cerebral palsy:
- Medical malpractice. A malpractice case is filed against one or more parties, alleging that they failed to provide an adequate standard of medical care for a patient who was harmed as a result. If you believe your child’s condition is the result of a careless medical mistake, such as using too much force during delivery or failing to monitor and act on fetal distress, you can file this kind of lawsuit.
- Discrimination and disability rights. For instances of discrimination or rights violations, consider filing a complaint or a lawsuit. A complaint filed with the appropriate state or federal agency is usually the first step. You may follow up with a lawsuit if the state law allows it and if you aren’t happy with the outcome of the complaint.
How Do I Find the Right Lawyer for the Cerebral Palsy Lawsuit Process?
It’s crucial that when beginning the process of filing a cerebral palsy lawsuit, you have the right lawyer by your side. The process requires an expert, not just in law, but in the specific laws that govern these cases. Don’t settle for a general lawyer. You need someone who has gone through this process for other disabled clients and children.
Choose a lawyer or law firm that specializes in medical malpractice, disabilities and birth injuries, or disability rights. Make sure the lawyer you hire has specific, relevant experience and proven wins for similar clients. With this lawyer guiding you, the process of filing a lawsuit becomes more transparent and more accessible and is more likely to result in a good outcome for your child.
The Process for Filing a Medical Malpractice Lawsuit over Cerebral Palsy in Delaware
Delaware sets its specific laws to govern medical malpractice lawsuits and how they proceed. You need to have a basic understanding of this process, even with a great lawyer guiding you so that you can make the best choices.
Understanding the Statute of Limitations
Before you take any other steps, make sure you are still within the statute of limitations and that your time hasn’t run out. Delaware requires that you file a malpractice suit within two years of when you discovered that negligence occurred, as long as it is not more than three years after the actual negligence. 
Delaware law does allow you to stop the clock on the statute if you file what is known as a “notice of intent to investigate.” This goes to each defendant.
Finding Qualified Medical Experts
To make your case, and even to file the lawsuit, you need a qualified medical expert. Delaware law requires that the expert meet specific qualifications. They must be experts in the same area of medicine as the defendants and know what the appropriate standard of care is in the applicable situation.
Filing the Lawsuit with Affidavit of Merit
When it’s time to file the lawsuit, your lawyer will need to include with it an affidavit of merit. This is a document signed by a qualified medical expert that states your case has value, and the evidence shows that negligence likely happened.  With that in hand, your lawyer can file the complaint against the defendants, to which they must respond to continue the process.
You’ll also need to discuss damages with your lawyer at this point. Delaware law does not cap damages so that you can seek any amount of economic or non-economic damages from the defendants. Provide your lawyer with records of medical expenses and other costs associated with your child’s condition.
Negotiating a Settlement
If possible, your lawyer will avoid a trial by negotiating a settlement. Both sides will come together during this part of the process to negotiate. Many defendants will settle at this stage because it costs less money in the long run.
Going to Trial
If negotiations fail, your lawyer will take your case to trial. This means presenting evidence and relying on expert testimony to prove your case to a jury. The jury decides if malpractice occurred and how much you are owed in damages. If the decision is unfavorable, either side may appeal and restart the process.
The Process for Filing Discrimination Complaints in Delaware
State law in Delaware to prevent discrimination focuses mainly on housing, employment, and public accommodations.  If your family experiences discrimination in housing because of your child’s needs or if your child is denied access to public spaces, you can file a complaint with the state’s Office of Civil Rights and Public Trust.
Once that complaint is submitted, it will be reviewed by the Office to determine if the state Attorney General wants to take legal action.
If you have an issue with education or services provided by the local schools, you will more likely be addressing your complaint to the federal government. If either instance does not get resolved to your satisfaction, you may file a lawsuit, although Delaware does not allow civil suits over public accommodations.
The process of filing a lawsuit for your child in Delaware can be confusing and intimidating. But if you understand the process and stages a little better, you can feel more confident seeking justice for your child, especially with the right lawyer to guide you.
- Medical liability/Malpractice statutes of limitation. (2014, March 20). Legislative News, Studies and Analysis | National Conference of State Legislatures.
Retrieved from: https://www.ncsl.org/research/financial-services-and-commerce/medical-liability-malpractice-statutes-of-limitation.aspx
- Medical liability/Malpractice merit affidavits and expert witnesses. (2014, June 24). Legislative News, Studies and Analysis | National Conference of State Legislatures.
Retrieved from: https://www.ncsl.org/research/financial-services-and-commerce/medical-liability-malpractice-merit-affidavits-and-expert-witnesses.aspx
- TITLE 6 - Chapter 45. Equal accommodations. (n.d.). State of Delaware - Delaware Code Online.
Retrieved from: https://delcode.delaware.gov/title6/c045/