PAMED and AMA Argue for Enforcement of Certificate of Merit
The AMA, joined by PAMED and the Delaware and New Jersey medical societies, filed an amici curiae brief with the U.S. Supreme Court on August 4, 2025 in the case of Berk v. Choy. Whether a state law providing that a complaint must be dismissed unless it is accompanied by an expert affidavit may be applied in federal court is the question before the court. Our brief argues that the state affidavit requirement should be applied in federal court.
This is a medical malpractice case out of Delaware filed in federal court concerning allegedly negligent treatment of an ankle injury. It was filed in federal court because of diversity jurisdiction, meaning one of the parties to the suit was located outside of Delaware. The issue concerns the affidavit of merit (‘affidavit requirement”), the requirement that a medical malpractice complaint include an affidavit from an expert saying that the claim has a degree of merit to it. This is a Delaware state law requirement. Pennsylvania has a similar requirement known in PA as a certificate of merit.
Some of the federal appellate court circuits enforce a state law affidavit requirement. Some do not. The Third Circuit, in which both PA and DE are located, enforce an affidavit requirement. In this case, the Third Circuit upheld the trial court’s dismissal of the case because the plaintiff had failed to file the required affidavit. But one of the appellate judges stated that maybe the Third Circuit should no longer enforce the affidavit requirement.
Our brief offers two arguments as to why the Court should affirm the Third Circuit decision, upholding the affidavit requirement. First, application of the federal rules of civil procedure requires that the Delaware affidavit required be enforced, and second, federal caselaw requires that the affidavit requirement be enforced.
Oral argument will occur this fall. The Court’s decision can be expected during the first half of 2026.