Supreme Court Rejects Affidavit of Merit Requirement to Bring a Medical Malpractice Claim in Federal Court
January 20, 2026
In a unanimous decision, the U.S. Supreme Court ruled today that a Delaware law requiring an “affidavit of merit” for filing a medical malpractice lawsuit conflicted with the Federal Rules of Civil Procedure and, therefore, was not enforceable in federal court. Like many other states, Delaware law provides that a plaintiff may not sue for medical malpractice unless an “affidavit of merit” accompanies the complaint. The affidavit must be signed by a medical professional and state reasonable grounds to believe medical negligence occurred. The idea is to prevent frivolous lawsuits from being filed. However, in Berk v. Choy, 607 U.S. ___ (2026), the U.S. Supreme Court found the affidavit of merit requirement conflicted with the Federal Rules of Civil Procedure, which requires only “a short and plain statement” of the claim and generally prohibits the court from considering matters outside the pleadings.
In 2021, the Fourth Circuit arrived at a similar conclusion when evaluating West Virginia’s Medical Professional Liability Act, W. Va. Code § 55-7B-6, which requires a notice of claim and screening certificate of merit – similar to Delaware’s affidavit of merit – be provided prior to filing any claim for medical professional liability. See Pledger v. Lynch, 5 F.4th 511 (4th Cir. 2021). The Fourth Circuit likewise held that the pre-suit notice requirements conflicted with the Federal Rules of Civil Procedure by imposing a heightened pleading requirement.
Although today’s decision directly applies only to federal court cases, it is likely to have sweeping effects across states that have imposed statutory requirements intended to weed out meritless medical negligence claims. With U.S. Supreme Court backing, we can anticipate a rise in challenges in state courts, too.