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Special Edition: Berk V. Choy Decision
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 A Note from Liz Midgley:
It is not often that the United States Supreme Court takes on a matter involving medical malpractice, but today is the day that we have a high court decision in just such a case! Big thanks to associate Noah Neale for his time and effort in following this case and reporting on it for us all.
The Supreme Court’s decision in Berk v. Choy* was released this morning. You will all recall from our December Pointers that oral argument had been held on October 6, 2025. There has been great speculation about the Court’s forthcoming decision, because even though the case turns on a technical procedural question, it is ideologically significant with greater potential impact outside of the medical malpractice realm.
In Berk, plaintiff Harold Berk received treatment for a fractured ankle from defendants Beebe Medical Center and Dr. Wilson Choy. Plaintiff alleged medical malpractice under the theory that the hospital employees worsened his injury by twisting the broken ankle while fitting a protective boot, and that Dr. Choy improperly recommended that plaintiff follow-up in two weeks rather than undergo immediate surgery.
Plaintiff initiated the suit in federal court under Delaware law. At the time the action was commenced, a Delaware statute required plaintiffs in medical malpractice actions to submit affidavits of merit accompanying the complaint. These affidavits, which are statements from qualified experts certifying that the plaintiff’s lawsuit has a reasonable basis, are mandatory under the Delaware statute; if the affidavit does not accompany the complaint, or the plaintiff does not move for an extension prior to or when filing the complaint, the court clerk is required to “refuse to file the complaint and it shall not be docketed.”
Plaintiff Berk filed for an extension to produce an affidavit of merit when he filed his complaint, but ultimately failed to provide one within the statutorily prescribed time limit. When defendants moved for the District Court to review the sufficiency of plaintiff’s submissions, plaintiff argued that the Delaware statute did not apply to the matter since, as it was pending in a federal court, the Federal Rules of Civil Procedure conflicted and superseded.
The District Court held that the Delaware statute remained in effect for plaintiff’s case and dismissed the case. The Third Circuit affirmed. The United States Supreme Court agreed to hear the case, recognizing that an increasing number of states have passed statutes requiring affidavits of merit or similar foundational documentation and seeking to clarify their application in federal court.
In its decision released today, the Supreme Court held that the Delaware statute does not apply, that plaintiff need not have filed an affidavit of merit, and consequently, that the complaint should not have been dismissed. Typically, under the Court’s choice of law doctrine, state substantive law is applied to claims under state law in federal court, while federal law is used for procedural matters. However, when a Federal Rule of Civil Procedure is directly on point, it “displaces contrary state law even if the state law would qualify as substantive.”
In the Court’s view, Federal Rule of Civil Procedure Rule 8, which mandates that a plaintiff, at the outset of their claim, present “a short and plain statement of the claim showing that [they are] entitled to relief” sets the only boundary on what is required for a sufficient claim. That is, “Rule 8 sets a ceiling on the information that plaintiffs can be required to provide about the merits of their claims.” The Delaware statute, which requires additional material (the affidavit of merit), conflicts with Rule 8, and pursuant to the Court’s precedent, the conflicting Federal Rule of Civil Procedure controls.
The result of the Court’s determination is that Delaware’s statute (and indeed, any state law that requires material beyond “a short and plain statement of the claim”) will have no effect as to matters sued in federal court, even when the cases are governed by state substantive law.
A concurring opinion written by Justice Jackson largely supported the majority's analysis, but conflicted in which Federal Rule of Civil Procedure supersedes the Delaware statute. Justice Jackson takes the position that Rule 8 is limited solely to pleadings, and does not conflict with statutes that require additional material outside of the pleadings, such as the Delaware statute. Instead, she believes the Delaware statute conflicts with Rule 3, which requires only a plaintiff's complaint to commence an action. Ultimately, this brings her to the same conclusion as the majority: the Delaware statute does not apply to matters in federal court, even those proceeding under Delaware substantive law.
The Berk decision has wide-reaching implications both within the medical malpractice world and beyond. Now, under Berk, a plaintiff pursuing a claim for medical malpractice under the laws of a state that require a physician’s affidavit of merit may now entirely circumvent the requirement by bringing the claim in federal court. The same goes for any other type of case where state law requires some additional predicate to filing a claim. So, while not all plaintiffs are able to file their claims in federal court (as state-law claims in federal court require diversity jurisdiction founded on the parties residing in different states as well as a threshold amount in controversy requirement), this decision nevertheless opens the door for a significant increase in medical malpractice and other litigation in federal court, as plaintiffs may now bypass important gatekeeping measures put in place under state law if they can bring the action federally.
We will be interested to see what venues are most impacted by this decision. Please let us know if you see a rise in medical malpractice cases being brought in federal court in your jurisdiction!
*As it is hot off the presses, the decision is still subject to revision before publication in the United States Reports, and an official citation is not yet available.
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