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In Delaware Statue Of Limitations For Damages
No action for the recovery of damages upon a claim against a health care provider for personal injury, including personal injury which results in death, arising out of medical negligence shall be brought after the expiration of 2 years from the date upon which such injury occurred; provided, however, that: (3) A plaintiff may toll the above statutes of limitations for a period of time up to 90 days from the applicable limitations contained in this section by sending a Notice of Intent to investigate to each potential defendant(s) by certified mail, return receipt requested, at the defendant(s’) regular place of business. The notice shall state the name of the potential defendant(s), the potential plaintiff and give a brief description of the issue being investigated by plaintiff’s counsel. The 90 days shall run from the last day of the applicable statue of limitations contained in this section. The notice shall not be filed with the court. If suit is filed after the applicable statute of limitations in this section, but before the 90 day period in this section expires, a copy of the notice shall be attached to the complaint to provide compliance with the statute of limitations.
18 Del. C. 6856. The synopsis to House Bill 310 provided in pertinent part: Additionally a process to allow up to ninety (90) days to investigate a potential negligence claim is added and would extend the medical malpractice statute of limitations accordingly. It is expected that this grace period will give plaintiffs an opportunity to determine whether a potential claim has merit and will result in some lawsuits that might otherwise be filed not being filed. The statute, by its clear language, says that the statute of limitations on a malpractice action is tolled by sending a Notice of Intent to investigate. The word “toll” means: (Of a time period, esp. a statutory one) to stop the running of; to abate the limitations period>.
Black’s Law Dictionary (8th ed. 2004) and (7th ed. 1999). In order to stop the running of the statute of limitations, it must not already have run. Thus, in this case, because the statute of limitations on the medical malpractice claim already had run, plaintiffs could not file their second suit. Sending Notices of Intent to investigate approximately two months after the statute of limitations had run did not revive the statute of limitations.
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