Must Have or Maybe Not: The Affidavit of Merit Requirement in Federal Med-Mal Cases

By Emma Anmolsingh, Staff Editor

On October 6, 2025 the United States Supreme Court heard oral argument on Berk v. Choy, a pivotal case in medical malpractice (med-mal) law set to establish grounds for how med-mal cases can be pursued in federal courts.^[1] Central to this case is whether or not affidavit of merit (AOM) requirements apply when the plaintiff brings a state law med-mal case in federal court. An AOM is a statement from an appropriate licensed professional stating they have reviewed the plaintiff’s claim and conclude that the defendant did not follow acceptable, professional standards of care.^[2] Many states impose the AOM requirement as a prerequisite to filing a med-mal claim to ensure that such cases have sufficient merit.^[3] For med-mal cases filed in state court, procedural rules mandate that the affidavit of merit must be obtained from the licensed professional soon after the lawsuit is filed.

In Berk v. Choy, the plaintiff brought a state law med-mal suit against an emergency room doctor and two different healthcare systems in the Delaware federal district court under diversity jurisdiction.^[4] The claim arose from an incident in Delaware where Berk fell, and severely injured his foot.^[5] He alleged that his injuries worsened due to negligence by the ER doctor and the hospital that treated him.^[6] Berk attempted to comply with the Delaware requirement of obtaining an AOM, but was unable to get one from his orthopedist.^[7] Berk argued that Delaware’s AOM requirement did not apply in federal court, however the district court dismissed his case holding that his medical records alone did not satisfy the AOM requirement—a requirement that did apply to federal court. The appellate court upheld the district court’s decision.^[8]

The U.S. Supreme Court will likely apply the Erie doctrine when deciding this case. The Erie doctrine requires federal courts to apply state laws for matters of substantive law.^[9] Procedural law establishes the rules of the court and methods to ensure the rights of individuals in the court system.^[10] Substantive law governs the original rights and obligations of individuals, derived from the common law, statutes, or constitution.^[11] Federal courts do not have to apply state procedural law, but they do need to apply state substantive law.A guiding premise of the Erie Doctrine is: “In state law disputes, federal courts may not craft a body of common principles independent of what state courts would apply.”^[12] When federal courts sit as substitute state court tribunals in diversity and supplemental jurisdiction cases, the federal courts must apply all state substantive law unless the U.S. Constitution, an Act of Congress, or a U.S. treaty otherwise preempts that State law.^[13] In the present case, SCOTUS is set to consider whether the affidavit of merit issue is “substantive” in nature, and therefore should apply in federal courts, or whether it is merely “procedural” in nature and does not apply.^[14]

Some courts have held that pre-litigation requirements like the AOM are procedural issues that conflict with the Federal Rules of Civil Procedure and have chosen not to enforce them, while other circuits have held that state pre-litigation laws are substantive in nature and must be enforced in med-mal actions.^[15] If SCOTUS holds that the AOM requirement is inapplicable in diversity jurisdiction-based cases, plaintiffs would benefit from access to a forum with fewer pre-filing procedural requirements.^[16] This would reduce the upfront cost of initiating a claim and lower the risk of immediate dismissal. Conversely, a decision rendering AOM statutes inapplicable in federal diversity suits could have negative consequences for healthcare providers and may encourage more frivolous lawsuits in federal courts.^[17] Additionally, it could negatively incentivize forum-shopping as plaintiffs might try and find ways to get into federal court to avoid the stringent AOM requirement in state court.^[18]

Physicians, hospitals, and insurers, support AOM statutes because vetting affidavits prevents nuisance suits and deters plaintiffs from initiating litigation without professional confirmation of negligence.^[19] The Supreme Court’s ruling on Berk v. Choy will impact federal courts since the AOM statutes act as a kind of “prescreening device,” filtering out claims prior to judges spending time addressing them.^[20] If AOM statutes are unenforceable, judges will lose this filtering mechanism which could result in more pretrial motion practice, an increased need for court-appointed experts, and potential increases in the volume of low-merit claims.^[21]

[1] https://www.cambridgemedicalexperts.com/supreme-court-weighs-state-malpractice-rules-in-federal-courts/

[2] https://www.mtvlaw.com/blog/what-is-a-certificate-of-merit-in-medical-malpra/

[3] https://www.justia.com/injury/medical-malpractice/affidavits-of-merit/

[4] https://www.publicjustice.net/case_brief/berk-v-choy/

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] https://supreme.justia.com/cases/federal/us/304/64/

[10] https://www.law.cornell.edu/wex/procedural_law

[11] https://www.law.cornell.edu/wex/substantive_law

[12] A Student’s Guide to Federal Rules of Civil Procedure 2025-2026 (p.64)