The core promise: no recovery, no fee
A contingency fee means the attorney's fee is contingent — dependent — on actually winning or settling the case. If there's no recovery at all, the client generally owes no attorney fee, regardless of how much work went into the case. This holds true across every type of Delaware personal injury case.
Outside medical malpractice: a negotiated rate
For an ordinary personal injury claim — a car accident, a slip and fall — Delaware sets no statutory percentage at all. The rate is whatever the attorney and client agree to, with 33.3% being the common market figure.
Inside medical malpractice: three tiers, by statute
This is where Delaware genuinely differs. 18 Del. C. § 6865 sets the maximum fee by tier: 35% of the first $100,000 of damages, 25% of the next $100,000, and 10% of any balance above $200,000. Each tier is taxed separately and added together — so on a $500,000 award, the fee works out to $35,000 (first tier) + $25,000 (second tier) + $30,000 (10% of the remaining $300,000), for a total of $90,000, an effective rate of 18%, not 35%.
A built-in alternative: per diem billing
The statute also allows a party to elect to pay their attorney on a per diem — essentially hourly — basis instead of the capped contingency schedule, provided a written contract for that arrangement is drafted at the time of employment. This gives clients and attorneys a documented alternative path when the capped schedule doesn't fit the case.
The cap touches fees, not damages
Worth keeping straight: Delaware's medical malpractice fee cap limits only what the attorney can charge. It does not limit what the client can recover — Delaware places no cap on damages in a medical malpractice case, a genuinely unusual combination compared to states that cap both together.