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Rule 71.2 – Medical malpractice

May 15, 2021 | Civil Procedure, Civil Procedure Superior Court, Delaware

(a) In general. This rule is applicable to all cases commenced in this Court alleging health care malpractice within the meaning of 18 Del. C. Chapter 68. To the extent practicable this rule shall be construed consistently with all other civil rules of this Court. Where there is a conflict between the provisions of this rule and other rules of this Court in a proceeding commenced pursuant to 18 Del. C. Chapter 68 the provisions of this rule shall govern. The requirements contained in this rule may be changed by the Court for good cause shown or by agreement among the parties subject to approval by the Court.
(b) Demand for review panel hearing. A party may file a demand to convene a malpractice review panel at any time subsequent to entry of appearance by all defendants who have been served and after a reasonable time for discovery unless otherwise stipulated to by the parties or ordered by the Court.

If a party files a motion for summary judgment, any other party that desires a malpractice review panel must file a demand to convene within 10 days after the filing of the opening brief in support of the motion for summary judgment, at which time the summary judgment proceedings may be stayed pending the review panel’s decision.

The parties may agree that certain issues may be decided by summary judgment (for example, statute of limitations) and other issues reserved for the panel. If the parties are unable to agree, the Court will determine which matters are to be decided. Once a demand to convene a malpractice review panel has been filed, no party may move for summary judgment or dismissal unless otherwise stipulated to by the parties or ordered by the Court.

If the Court rules that any matter raised in the pleadings is barred as a matter of law, then neither party may thereafter submit any issue that was so barred to the malpractice review panel.

Once a case has been pre-tried before the Court and scheduled for trial, no party may file a demand to convene a malpractice review panel unless stipulated to or ordered by the Court.

(c) Motion for review of panel opinion. Any party who files a motion for review of a malpractice panel opinion pursuant to 18 Del. C. § 6812 shall simultaneously certify to the Prothonotary and the panel reporter those portions of the panel record to be considered by this Court. Within 5 days of the receipt of such certification any other party to the proceeding shall certify in the same manner any additional portions of the panel record to be considered by this Court. The moving party shall file any brief in support of the motion for review within 20 days of receipt of the panel record from the panel reporter; any other party shall file any answering brief within 20 days of receipt of movant’s brief. Thereafter the Court shall decide the motion for review based upon the record before it and without oral argument unless the Court so orders. There shall be no remand of the matter to the panel following decision on a motion for review unless, on application of a party, the Court finds that (1) on its face the panel decision does not conform to the requirements of 18 Del. C. § 6811, or (2) there was an irregularity or impropriety in the review panel proceedings that substantially impaired the integrity of the review panel proceedings. A party who files a motion for review shall bear the cost of preparing the certified transcript of the panel proceedings, such costs to be taxable at the conclusion of the case pursuant to Rule 54(d).
(d) Submission of panel opinion to jury. In the event the case is tried before a jury, and on application of a party, any malpractice review panel opinion that has been rendered in the matter will be read under appropriate instructions by the Court and the opinion shall then be introduced into evidence as the first exhibit of the moving party.

Del. R. Civ. P. Super. Ct. 71.2