Supreme Court to Review ‘Affidavit of Merit’ in Medical Malpractice Cases
TL/DR –
The Supreme Court is set to consider whether Delaware’s “affidavit of merit” statute should apply in federal courts, which would require a report from a healthcare provider certifying a medical malpractice claim’s merit before the case can proceed. This statute came under scrutiny after a patient sued a doctor and two hospitals for medical malpractice without an affidavit of merit, causing the district court to dismiss the case. The Supreme Court’s decision could potentially affect a majority of states that have similar statutes in place to combat frivolous medical malpractice lawsuits, and the outcome could either encourage or discourage forum shopping and affect the prevalence of unvetted medical malpractice claims in federal courts.
Supreme Court to Consider Delaware’s Affidavit of Merit Statute
The US Supreme Court will examine if federal courts should apply Delaware’s “affidavit of merit” statute in cases of diversity jurisdiction. This decision could significantly influence the legal landscape, as many states have introduced similar statutes to limit unmeritorious medical malpractice lawsuits.
Case Background: Berk v. Choy
Harold Berk, a pro se plaintiff, filed a medical malpractice suit against a doctor and two hospitals in the District Court for the District of Delaware. However, he failed to provide an affidavit of merit, and the case was dismissed as per Delaware law. Delaware’s statute requires an affidavit of merit to accompany a negligence lawsuit against a healthcare provider. Berk appealed the dismissal.
The Third Circuit Decision
The Third Circuit Court of Appeals pondered if the Delaware affidavit of merit statute conflicts with the Federal Rules of Civil Procedure. The court found no conflict with Federal Rule 8, 9, 11 or 12. It was concluded that Delaware’s statute is separate from the pleading filed at the commencement of a lawsuit.
Supreme Court to Settle the Issue
On March 10, 2025, the Supreme Court agreed to address the issue of the applicability of a state law requiring an expert affidavit in federal court.
Disagreement Among Courts
The Third Circuit did not acknowledge a circuit split on the issue. They distinguished cases from other circuits by noting the majority involved federal prisoners under the Federal Tort Claims Act. In comparison, the Third Circuit’s case involved a diversity case.
Implications of the Decision
The requirement for an affidavit of merit varies among circuits based on state statute language and whether the affidavit is considered a pleading or a substantive requirement. The Supreme Court’s decision could clarify this issue. However, if the statutes are deemed inapplicable in federal court, it might encourage forum shopping and a surge in frivolous medical malpractice claims.
Further Information
For more information on the topic, please contact Sharon L. Caffrey, Robert M. Palumbos, Anne A. Gruner, or Lauren Pugh.
Please note: This article is for informational purposes and does not constitute legal advice. For more information, see the full disclaimer.
—
Read More Health & Wellness News ; US News