Berk v. Choy, 2024 WL 3534482 (3d Cir. July 25, 2024), cert. granted, 145 S.Ct. 1328 (2025) (Mem.)
Most medical malpractice actions are litigated in state court. Patients typically seek medical care near their residence, which usually means the patient and medical provider are based in the same state.
However, when a patient seeks medical care in a different state and returns home, only to later allege medical malpractice on the part of the medical provider, the patient may be entitled to file in federal court. “Diversity” jurisdiction, such as the situation where the plaintiff and defendant are based in two different states, permits the filing of the medical malpractice case in federal district court so long as the amount in controversy (“damages”) exceeds $75,000.
When a medical malpractice lawsuit is filed in Delaware state court, the plaintiff must file an Affidavit of Merit. 18 Del. C. § 6853(a). The Affidavit is filed under seal with the complaint. It must contain a sworn statement of a qualified medical expert that “there are reasonable grounds to believe that there has been health-care medical negligence committed” by the defendant. § 6853(a)(1). The defendant may (and usually does) challenge the Affidavit by motion after the complaint is filed. The judge then reviews the Affidavit in camera (confidentially, without the parties) to determine if it complies with the statute. The failure to file an Affidavit or a compliant one may lead to the outright dismissal of the lawsuit.
There is no such statute in federal court. Does the plaintiff who files in Delaware federal court need to file an Affidavit to maintain a medical malpractice claim? This is the question the United States Supreme Court has taken up for its 2025 term.
Procedural Versus Substantive Law
The answer is far from clear. The issue invokes what is known as the Erie Doctrine. Under the Erie Doctrine, “a federal court sitting in diversity must apply substantive state law and federal procedural law.” If a state statute conflicts with federal procedural rules, the court must apply the federal rule to the exclusion of the state statute, absent various constitutional exceptions beyond the scope of this article. If the state statute does not conflict with the federal rules, the court then considers “whether (1) the state statute is outcome determinative, and (2) applying it would frustrate” the Erie Doctrine’s goal of preventing different outcomes in state and federal courts. If the state statute and federal rule can exist side-by-side, then there is no conflict.
The Third Circuit, the federal appellate court that covers Delaware, New Jersey, and Pennsylvania, has determined that state Affidavit of Merit statutes for medical malpractice claims do not conflict with the federal rules. In other words, in the Third Circuit, a plaintiff in federal court must file an Affidavit of Merit if the state statute would require one (as all three states do).
In the Sixth (Ohio, Kentucky, Michigan, and Tennessee) and Ninth (California, Oregon, Washington, Nevada, Idaho, Montana, Arizona, Hawaii, and Alaska) Circuit Courts of Appeal, the courts have determined that Affidavit of Merit statutes do conflict with federal rules. In other words, a plaintiff in a federal court covering these states is not required to file an Affidavit even if it were required in state court.
The difference on these decisions comes down to how courts treat the term “pleading” and federal rules regarding what is contained in a “pleading.” A “pleading” is a “formal document in which a party to a legal proceeding . . . sets forth or responds to allegations, claims, denials, or defenses.” Black’s Law Dictionary, “Pleading” (12th ed. 2024). The “main pleadings” of a case are typically those that start the case: i.e., the plaintiff’s complaint stating allegations of medical negligence and the defendant’s answer denying the allegations. See id.
The Third Circuit views an Affidavit as something other than a “pleading.” For instance, in Delaware, the Affidavit usually accompanies the complaint, but it does not plead allegations as a complaint does. The Affidavit is under seal, meaning the defendant is not informed what is contained in the Affidavit. And the Affidavit may follow the filing of a complaint under limited circumstances. § 6853(a)(2) (allowing plaintiff to move for 60-day extension). This “temporal” separation is important to the Third Circuit in holding the Affidavit is not a “pleading.” Berk, 2024 WL 3534482, at *3 n.10 (citation omitted).
The Sixth and Ninth Circuits view the Affidavit as a “pleading;” indeed, without the Affidavit in states that have such statutes, the case cannot proceed, rendering the Affidavit as important as the complaint itself. By interfering with how the lawsuit begins in court, these courts view additional requirements to filing as conflicting with Rule 3 of the federal procedural rules that requires only a complaint be filed to begin a case. See Martin v. Pierce Cnty., 34 F.4th 1125, 1131 (9th Cir. 2022).
The United States Supreme Court tends to take up issues that involve Circuit splits: disagreement on similar issues by multiple Courts of Appeals. The Supreme Court is set to weigh in on this issue and determine whether a plaintiff must follow a state’s Affidavit of Merit statute when filing in federal court. A slight majority of states currently have such statutes, making the High Court’s decision consequential to a great many potential medical malpractice plaintiffs.
Dalton & Associates
Dalton & Associates litigates medical malpractice claims involving serious bodily injury or death in Delaware, Pennsylvania, and New Jersey. We never file cases without rigorous evaluation and supporting opinions from highly qualified medical experts. An Affidavit of Merit is only the entrance ticket to litigation (pending the Supreme Court’s decision for federal actions). Medical malpractice claims are expensive and difficult matters to prosecute. They frequently require more than one medical expert to evaluate, opine, and testify in support of a plaintiff’s claim. Our clients never pay for such experts, and never pay us anything, unless we successfully resolve their claims.
Contact us by phone or email to begin your free case assessment with one of our excellent paralegals.
The above article is meant for general information purposes only. Any statements contained herein are meant only for such purposes and not as legal advice.
If you have questions about this article or Medical Malpractice, please contact Michael Dalton at [email protected].