Harold R. Berk, Petitioner v. Wilson C. Choy, et al.

The Supreme Court said Delaware’s rule requiring an expert affidavit with a medical malpractice complaint does not apply in federal court when the case is there under diversity jurisdiction. The Court unanimously reversed the Third Circuit and sent the case back for further proceedings.

Justice Barrett wrote a 9-0 opinion for a unanimous Court reversing the Third Circuit.

Majority

Barrett

Roberts

Thomas

Alito

Sotomayor

Kagan

Gorsuch

Kavanaugh

Jackson

“Delaware’s affidavit law does not apply in federal court.”

This affects medical malpractice plaintiffs and defendants in federal court in Delaware. For example, a patient suing in federal court will not have the case thrown out just for failing to file the state affidavit at the start.

The case returns to the lower courts, which must continue the litigation without treating Delaware’s affidavit rule as a bar in federal court. Lawyers and judges in similar diversity cases will now adjust their filings and motions to match that rule.

The dispute was whether a federal court must enforce Delaware’s rule requiring an expert affidavit with a medical malpractice complaint. The Supreme Court said no.

Patients, doctors, hospitals, and insurers in Delaware medical malpractice cases filed in federal court are directly affected. The ruling changes an early filing requirement in those cases.

The case goes back to the lower courts for more proceedings. Those courts must move forward without dismissing the suit based on Delaware’s affidavit requirement alone.