Medical Malpractice Settlement Agreement and Release (Delaware)

CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE

(Delaware Medical Malpractice Action)

1. PARTIES

This Confidential Settlement Agreement and General Release (the "Agreement") is entered into as of [EFFECTIVE DATE] by and among the following parties (collectively, the "Parties"):

2. RECITALS

A. On or about [DATE OF ALLEGED MALPRACTICE], Claimant received medical care from [PROVIDER] at [FACILITY].

B. Claimant alleged that the care fell below the applicable standard of skill and care, causing injuries, and filed (or threatened to file) a health-care medical negligence action styled [CASE CAPTION], [COURT], C.A. No. [__________] (the "Action").

C. Pursuant to 18 Del. C. § 6853, Claimant's complaint [was / would be] accompanied by an Affidavit of Merit executed by an expert qualified under 18 Del. C. § 6854.

D. Released Parties deny all allegations of negligence and any liability. The Parties have agreed to resolve all claims without admission of liability and to avoid the cost, delay, and risk of further litigation.

E. The Parties intend that this Agreement constitute a full and final compromise of all claims, known and unknown, and a complete release.

NOW, THEREFORE, in consideration of the mutual promises and the consideration described below, the Parties agree as follows.

3. SETTLEMENT CONSIDERATION

3.1 Total Settlement Amount. Released Parties (through their insurer) shall pay Claimant the total sum of $[TOTAL AMOUNT] (the "Settlement Amount") in full and final settlement of all claims.

3.2 Payment Allocation and Form.
☐ Lump Sum of $[__________] payable within [30] days of (i) full execution of this Agreement, (ii) approval of any required court order, and (iii) satisfaction of Section 7 lien conditions.
☐ Structured Settlement — a portion of $[__________] funded through a qualified assignment under 26 U.S.C. § 130, with payments per Exhibit A (Periodic Payment Schedule), funded by [ASSIGNEE] through annuity issued by [LIFE INSURER, A.M. Best rating ___].
☐ Attorneys' Fees and Costs. $[__________] payable directly to [CLAIMANT'S COUNSEL] under a separate IRS Form W-9.

3.3 Tax Allocation (Damages Characterization). The Parties allocate the Settlement Amount as compensation for personal physical injuries and physical sickness, intended to be excludable from gross income under 26 U.S.C. § 104(a)(2). Allocation:

3.4 Method of Payment. Wire transfer or trust account check delivered to [CLAIMANT'S COUNSEL'S IOLTA TRUST] within the time specified.

4. STRUCTURED SETTLEMENT (IF ELECTED)

4.1 Qualified Assignment. Released Parties shall make a qualified assignment of their obligation to make periodic payments under 26 U.S.C. § 130 to [ASSIGNEE COMPANY]. The Assignee shall fund the periodic payments by purchasing an annuity from [LIFE INSURER] (the "Annuity Issuer").

4.2 Periodic Payment Schedule. As set forth in Exhibit A, including guaranteed lump sums, lifetime monthly benefits, cost-of-living adjustments, and beneficiary designations.

4.3 Non-Assignability. Claimant's right to receive periodic payments is non-assignable, non-transferable, and not subject to acceleration, anticipation, or commutation, except in compliance with the Delaware Structured Settlement Protection Act (10 Del. C. ch. 64) and applicable federal law.

4.4 Sole Obligor. Upon the Assignee's acceptance, the Released Parties and Insurer are fully released from any obligation to make the periodic payments, which become the sole obligation of the Assignee, secured by the annuity.

5. RELEASE OF ALL CLAIMS

5.1 General Release. In consideration of the Settlement Amount, Claimant, on behalf of Claimant and Claimant's heirs, executors, administrators, successors, assigns, spouse, and personal representatives (collectively, "Releasing Parties"), hereby fully, finally, and forever releases, acquits, and discharges Released Parties and their parents, subsidiaries, affiliates, officers, directors, employees, agents, insurers, reinsurers, attorneys, predecessors, and successors (collectively, "Released Parties") from any and all claims, demands, actions, causes of action, liabilities, damages, costs, attorneys' fees, expenses, and compensation of any kind, whether known or unknown, suspected or unsuspected, accrued or unaccrued, in law or in equity, that the Releasing Parties have or may have arising out of or relating in any way to the care, treatment, or events described in Section 2 or pleaded or that could have been pleaded in the Action.

5.2 Unknown Claims Waiver. Releasing Parties expressly waive and release all rights they may have under any statute or common-law principle that would otherwise limit the effect of a release to those claims known or suspected to exist at the time of execution, and they assume the risk that the facts may turn out to be different from what they presently believe.

5.3 Loss of Consortium / Derivative Claims. Any derivative claims, including loss of consortium, services, society, or support, are likewise released.

5.4 Wrongful Death and Survival. [IF APPLICABLE] This release includes any wrongful death claim under 10 Del. C. § 3724 and any survival claim under 10 Del. C. § 3701, as applicable.

5.5 Carve-Outs. This release does not waive: (a) claims to enforce this Agreement; (b) workers' compensation benefits independently owed; or (c) Medicare/Medicaid rights independent of Claimant's claims.

6. DISMISSAL; NO ADMISSION

6.1 Dismissal with Prejudice. Within [14] days of receipt of the Settlement Amount, Claimant's counsel shall file a Stipulation of Dismissal with prejudice in the Action, each party to bear its own costs except as provided herein.

6.2 No Admission of Liability. This Agreement is a compromise of disputed claims. Released Parties expressly deny any negligence, fault, or liability, and nothing in this Agreement shall be construed as an admission. Inadmissibility is governed by D.R.E. 408 and Fed. R. Evid. 408.

7. LIEN RESOLUTION AND INDEMNIFICATION

7.1 Claimant's Lien Representations. Claimant represents and warrants that, except as disclosed in Schedule 1, there are no outstanding subrogation rights, statutory liens, healthcare-provider liens, ERISA plan rights of recovery, or other third-party reimbursement obligations against the Settlement Amount.

7.2 Medicare Secondary Payer Compliance.
(a) Claimant represents Claimant's Medicare status (current beneficiary, applied, or reasonably expected within 30 months).
(b) The Parties have considered Medicare's interests consistent with 42 U.S.C. § 1395y(b)(2) and applicable CMS guidance, including any Medicare Set-Aside arrangement described in Schedule 2, where appropriate.
(c) Claimant agrees to satisfy any Medicare conditional payment demand from the Settlement Amount.

7.3 Medicaid. Claimant agrees to satisfy any Delaware Division of Medicaid & Medical Assistance lien pursuant to 42 U.S.C. § 1396k and 31 Del. C. § 522.

7.4 Indemnification. Claimant agrees to indemnify, defend, and hold harmless the Released Parties from any claim, demand, action, or liability — including reasonable attorneys' fees — asserted by any lienholder, subrogee, insurer, governmental payer, healthcare provider, or other third party arising out of or relating to the injuries, care, or Settlement Amount described in this Agreement. This indemnification is a material inducement to settlement.

7.5 Holdback (Optional). [IF APPLICABLE] $[__________] of the Settlement Amount shall be held in Claimant's counsel's IOLTA trust account pending final lien resolution, after which any remainder shall be disbursed.

8. NATIONAL PRACTITIONER DATA BANK (NPDB) REPORTING

8.1 Mandatory Reporting Acknowledged. The Parties acknowledge that any payment made by an insurer or other entity for the benefit of a named licensed practitioner in settlement of a written medical malpractice claim is reportable to the National Practitioner Data Bank under 42 U.S.C. § 11131 and 45 C.F.R. Part 60.

8.2 Reporting Party. [INSURER / SELF-INSURED ENTITY] shall make any required NPDB report consistent with 45 C.F.R. § 60.7 within 30 days of payment.

8.3 No Suppression. Nothing in Section 9 (Confidentiality) shall be construed to require any Party to violate NPDB reporting obligations, and any clause to the contrary is severable consistent with 45 C.F.R. § 60.7(b) (which prohibits structuring payments to avoid reporting).

8.4 Dispute Procedures. Released Practitioner retains all rights to dispute the contents of any NPDB report under 45 C.F.R. § 60.21.

9. CONFIDENTIALITY

9.1 Confidential Terms. The Parties agree that the existence and terms of this Agreement (including the Settlement Amount) shall remain confidential and shall not be disclosed except:
(a) To attorneys, accountants, tax advisors, lien resolution vendors, and immediate family on a need-to-know basis, bound by confidentiality;
(b) To Medicare/Medicaid or other governmental payers as required by Section 7;
(c) Pursuant to NPDB reporting under Section 8;
(d) As required by court order, subpoena, statute, or regulation (with prompt notice to the other Parties where lawful);
(e) To enforce this Agreement.

9.2 Permitted Statement. If asked about the Action, the Parties may state only: "The matter has been resolved" or substantially similar.

9.3 No Disparagement. The Parties agree not to make disparaging statements about one another concerning the Action or the care at issue. Nothing in this Section restricts truthful communications with regulators, licensing boards, law enforcement, or in response to lawful process.

9.4 Remedies. Breach of this Section 9 entitles the non-breaching Party to seek injunctive relief and actual damages; liquidated damages are not imposed in lieu of actual damages.

10. REPRESENTATIONS AND WARRANTIES

10.1 Authority. Each Party represents that it has full power and authority to enter into and perform this Agreement, and that the signatory is duly authorized.

10.2 No Assignment of Claims. Claimant represents that no claim released herein has been assigned, pledged, or transferred.

10.3 Independent Advice. Each Party has had the opportunity to consult with counsel and tax advisors of its choosing and is not relying on any representation other than as expressly set forth herein.

10.4 Voluntariness. Claimant has read this Agreement, understands its terms, and signs it voluntarily.

10.5 Court Approval. [IF MINOR OR INCAPACITATED CLAIMANT] This Agreement is conditioned on approval by the [Court of Chancery / Superior Court] under Delaware Chancery Rule 133 or applicable guardianship procedures; until such approval, no obligation to pay arises.

11. MISCELLANEOUS

11.1 Governing Law. This Agreement is governed by Delaware law.

11.2 Forum. Any action to enforce this Agreement shall be brought exclusively in the Superior Court of the State of Delaware for [NEW CASTLE / KENT / SUSSEX] County (or, where applicable, the United States District Court for the District of Delaware).

11.3 Integration. This Agreement (with all Exhibits and Schedules) constitutes the entire agreement among the Parties concerning its subject matter.

11.4 Amendments. Only in a writing signed by all Parties.

11.5 Severability. If any provision is held unenforceable, the remainder remains in force; the release in Section 5 shall be reformed to be enforceable to the maximum extent permitted.

11.6 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts and by electronic signature.

11.7 Construction. The Parties have jointly drafted this Agreement; no rule of construction against the drafter applies.

11.8 Notices. In writing, by personal delivery, overnight courier, or certified mail, return receipt requested, to the addresses below.

12. EXECUTION

CLAIMANT:

___________________________________
[CLAIMANT NAME]
Date: [__/__/____]

☐ I have read and understand this Agreement.
☐ I have had the opportunity to consult with counsel.
☐ I sign this Agreement knowingly and voluntarily.

CO-CLAIMANT / SPOUSE (IF APPLICABLE):

___________________________________
[CO-CLAIMANT NAME]
Date: [__/__/____]

RELEASED PARTY:

[PROVIDER / FACILITY NAME]
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
Date: [__/__/____]

INSURER:

[CARRIER NAME]
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
Date: [__/__/____]

NOTARY ACKNOWLEDGMENT (CLAIMANT)

State of Delaware, County of [__________]

On [__/__/____], before me personally appeared [CLAIMANT NAME], proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed the same for the purposes therein contained.

___________________________________
Notary Public — My commission expires: [__/__/____]

EXHIBITS AND SCHEDULES

• Exhibit A — Structured Settlement Periodic Payment Schedule (if elected)
• Exhibit B — Stipulation of Dismissal with Prejudice
• Schedule 1 — Disclosed Liens and Subrogation Claims
• Schedule 2 — Medicare Set-Aside Documentation (if applicable)
• Schedule 3 — Form W-9 for Claimant and Claimant's Counsel

Sources and References

• 18 Del. C. ch. 68 — Health-Care Medical Negligence Insurance and Litigation
• 18 Del. C. § 6853 — Affidavit of Merit; expert medical testimony
• 18 Del. C. § 6854 — Expert witness qualifications
• 18 Del. C. § 6856 — Statute of limitations (2 years; 3 for foreign objects/concealment)
• 10 Del. C. § 8127 — Tolling for minors in health-care negligence cases
• 10 Del. C. ch. 64 — Delaware Structured Settlement Protection Act
• 26 U.S.C. § 104(a)(2) — Exclusion for personal physical injury damages
• 26 U.S.C. § 130 — Qualified assignments for structured settlements
• 42 U.S.C. § 11131 et seq. & 45 C.F.R. Part 60 — NPDB reporting
• 42 U.S.C. § 1395y(b)(2) — Medicare Secondary Payer
• 42 U.S.C. § 1396k; 31 Del. C. § 522 — Medicaid third-party liability
• Delaware: NO statutory cap on noneconomic damages in medical malpractice
• D.R.E. 408 / Fed. R. Evid. 408 — Inadmissibility of compromise offers

This template is provided for informational purposes only and must be reviewed by Delaware counsel and a tax advisor before use.