On March 10, 2025, the Supreme Court of the United States agreed to hear Berk v. Choy, No. 23-1620, 2024 U.S. App. LEXIS 18336 (3d Cir. July 25, 2024), a case over whether a Delaware statute which requires service of an affidavit of merit before a claimant can sue a health care provider will be applied in cases filed in federal court. This is important to health care providers because the Supreme Court’s decision will determine whether they are entitled to the protection of these tort reform measures when suit is filed in federal instead of state courts.
Many states, like Delaware and West Virginia, passed tort reform measures governing civil actions against health care providers to ensure availability and affordability of liability insurance and enhance the ability to attract and retain health care providers. And many of the statutes include provisions requiring a claimant, before filing suit, to provide to the defendant health care provider an affidavit showing that a qualified expert has reviewed the case and holds the opinion the provider breached the standard of care. If a claimant does not comply, any suit filed must be dismissed.
Six federal circuit courts have held that statutes requiring a pre-suit affidavit conflict with the Federal Rules of Civil Procedure. Applying Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co. 559 U.S. 393 (2010), those circuits held the statutes are not enforceable in federal courts. Two circuits, however, have held that pre-filing statutes are substantive state law and do not conflict with the federal rules and thus must be enforced by federal courts.
What this means, for example, is that if a claimant sues a doctor in a West Virginia circuit court without first serving a Notice of Claim and Certificate of Merit as required by W. Va. Code §55-7B-6, the court must dismiss the case for lack of subject matter jurisdiction. If the same case is brought in federal court – for example, where there is diversity of citizenship between the parties – the federal court, under the Fourth Circuit’s decision in Pledger v. Lynch, 5 F.4th 511, 515 (4th Cir. 2021), will not apply W. Va. Code 55-7B-6 and dismiss the case.
The Supreme Court’s answer to this question will determine whether state statutory protections for health care providers differ depending on whether the case is filed in state or federal court. If the Court affirms Berk, and holds that state pre-suit affidavit statutes do not conflict with the federal rules, the Pledger case should be overruled, restoring statutory protections to West Virginia health care providers regardless of whether they are sued in state or federal court. We’ll be tracking the case.