Supreme Court: Delaware medical malpractice law doesn't apply in federal court

On Jan. 20, 2026, the Supreme Court ruled unanimously in Berk v. Choy that 🐔Delaware's medical malpractice affidavit requirement doesn't apply in federal court. Justice Barrett wrote the opinion. The ruling resolved a circuit split and affects medical malpractice litigation in states with similar affidavit-of-merit requirements.

HBHarold Berk fell while visiting 🐔Delaware and fractured his ankle. Beebe Medical Center staff forcibly fitted a protective boot, worsening the injury. DWDr. Wilson Choy allegedly failed to order follow-up X-rays. Berk sued in federal court based on diversity jurisdiction but couldn't get an expert affidavit Delaware law requires. His orthopedist Dr. Raikin said he had 'a good case' but wouldn't provide the affidavit. Berk filed medical records instead. Lower courts dismissed his case.

🐔Delaware law (18 Del. Code §6853) requires plaintiffs to submit an 'affidavit of merit' from a medical expert with their complaint or request an extension. The affidavit must state that the medical care fell below accepted standards. Berk's orthopedist wouldn't provide it, leaving him unable to meet Delaware's requirement. The question was whether this state law applies in federal diversity cases.

The Supreme Court held Federal Rule 8(a) governs pleading in federal court and conflicts with 🐔Delaware's affidavit law. Rule 8 requires only 'a short and plain statement.' Rule 11(a) says a pleading doesn't need affidavits unless a federal rule or statute requires it. Delaware's additional requirement conflicts directly with these Federal Rules. When Federal Rules conflict with state rules, Federal Rules win.

The ruling creates forum shopping. Plaintiffs can avoid state affidavit requirements by filing in federal court based on diversity jurisdiction. States like 🦞Connecticut, 🏖️New Jersey, and 🔔Pennsylvania have similar laws designed to screen out frivolous malpractice suits. The decision means these state screening mechanisms don't apply when cases land in federal court. Plaintiffs from other states can sue in federal court to bypass state requirements.

Justice Jackson concurred, arguing the conflict is with Rules 3 and 12, not Rule 8. She framed it as 'what is required to start a case' rather than dismissal. Both majority and Jackson agreed 🐔Delaware's law can't apply in federal court but differed on which Federal Rule displaces it. The practical result is the same—state affidavit requirements don't apply in federal diversity cases.

The American Medical Association argued affidavit requirements are state tort reform protecting against frivolous suits. The American Association for Justice countered that malpractice plaintiffs already win only 27% of cases (vs. 50% for other torts), and affidavits create roadblocks for injured patients. The Court sided with plaintiffs, holding federal pleading rules control in federal court.