Justices Reject Affidavit Rule in Federal Malpractice Case (2)

Medical malpractice plaintiffs filing suits in federal court don’t have to comply with a state affidavit of merit law, the US Supreme Court said Tuesday.

The state law requiring plaintiffs to file an expert witness’s written statement that the claims are reasonable along with their complaint conflicted with Rule 8 of the Federal Rules of Civil Procedure, which requires complaints to contain only “a short and plain statement of the claim showing” that the plaintiff is entitled to relief,” Justice Amy Coney Barrett said for the high court.

Whether a state’s heightened pleading requirements apply in federal courts is a question dating back decades to when states began adopting these types of “tort reform” measures to weed out frivolous cases. Most medical malpractice cases are filed in state courts, but federal courts have jurisdiction in some circumstances, such as when the parties are citizens of different states.

The high court was asked to clear up a circuit court split that had developed in medical malpractice diversity cases over time.

Federal courts presiding over state-law claims are generally required to apply state substantive law unless the US Constitution, a treaty, or a federal law requires otherwise, Barrett said. But, under the Rules Enabling Act, an on-point valid federal procedural rule displaces a contrary state law, even if the state law qualified as “substantive.”

Fed. R. Civ. P. 8 answered the question of whether the plaintiff’s lawsuit had to be dismissed here, the justices said. “By requiring no more than a statement of the claim,” Rule 8 implicitly and clearly established that other evidence isn’t required, they said. Rule 12 reinforces that point by forbidding courts from considering matters not contained in the pleadings.

Justice Ketanji Brown Jackson concurred in the result, but said she found the Delaware affidavit-of-merit law conflicts with Rules 3. Under that rule, civil actions are commenced in federal courts “as soon as the complaint—and only the complaint—has been filed by the plaintiff,” she said.

The case arose when Harold Berk, a Florida resident who spends time in Delaware, sued his health-care providers in a federal court there, alleging they negligently treated his ankle injury. But he wasn’t able to acquire an affidavit of merit, and the federal judge dismissed his complaint for failure to comply with Delaware’s law that mandates filing an expert’s affidavit of merit along with a complaint, and that the failure to do so warrants automatic dismissal. The US Court of Appeals for the Third Circuit affirmed.

Unanimous Judgment

The top court’s reversal was unanimous, with Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch, and Brett M. Kavanaugh joining the opinion.

This was an easy case that led to a straightforward decision, Robert Peck of the Center for Constitutional Litigation in Washington said. He noted that Barrett and Jackson reached the same result relying on different federal rules.

These rules were adopted to ease access to the courts, and “taken together, they apply to simplify pleadings so cases don’t get caught on technicalities,” Peck said. Delaware’s law does the opposite. He wrote a friend-of-the court brief supporting the patient on behalf of the American Association for Justice.

Provisions requiring affidavits of merit, moreover, add expense to medical malpractice cases, which already are the most expensive type of litigation. Additionally, there’s often satellite litigation over applying the state provisions, meaning that courts never get to the merits, Peck said.

Potential Effect

Federal medical malpractice cases usually arise under the court’s diversity jurisdiction—patients and providers who live in different states, where the damages allegedly exceed $75,000, said Brandon Vaughn, a partner at Robins Kaplan LLP in Minneapolis who represents plaintiffs in medical malpractice suits. The ruling eliminates a procedural bar that could prejudice plaintiffs in those cases, he said.

But Vaughn doesn’t “see this as a floodgates issue.” Plaintiffs’ attorneys may try to take advantage of the decision, but it’s not likely to increase the number of federal filings because most medical malpractice cases are filed in state courts, between patients and providers who live in the same state, he said. Patients infrequently get out-of-state care, and there are very specific federal provisions for determining residency for purposes of diversity jurisdiction, he said.

The top court, moreover, upheld the rule of law that states are entitled to adopt more stringent requirements for medical malpractice cases if they want to do so, Vaughn said.

Hillary A. Taylor, managing shareholder at Keating Jones Hughes in Portland, Or., disagreed. “The decision provides an opportunity for forum shopping for litigants seeking to avoid state affidavit of merit requirements,” she said.

Such requirements are intended to reduce the number of frivolous filings and “curb the rising tide of medical malpractice litigation,” Taylor said. This decision thwarts that intent.

“Cases against medical providers that would have been dismissed in state court will now be able to be litigated in federal court,” she said.

Additionally, “there are already a fair number of medical malpractice cases in federal court (e.g., litigation against Veterans Affairs hospitals and federally qualified clinics),” Taylor said. “This decision is only likely to increase those numbers and produce different outcomes from what would have happened in state court.”

Taylor wrote the DRI Center for Law & Public Policy’s amicus brief supporting the providers. She defends hospitals and medical professionals in malpractice litigation.

Arnold & Porter Kaye Scholer represented Berk. Wheeler Trigg O’Donnell LLP, Covington & Burling LLP, Bradley Arant Rose & White, Elzufon Austin & Mondell PA, and Marshall Dennehey PC represented the providers.

The case is Berk v. Choy, U.S., No. 24-440, 1/20/26.