On January 20, 2026, the United States Supreme Court issued a unanimous decision in Berk v. Choy, 607 U.S. 187 (2026), that is already reshaping how medical malpractice attorneys on both sides of the aisle think about where to file — and where to defend — complex negligence cases. The ruling, authored by Justice Barrett and joined by eight members of the Court, holds that state affidavit of merit medical malpractice requirements do not apply in federal court when a valid Federal Rule of Civil Procedure directly conflicts with the state statute. For the roughly 23 states that maintain some version of an affidavit or certificate of merit requirement, this decision is not a procedural footnote. It is a fundamental change in litigation strategy.
What Is an Affidavit of Merit in a Medical Malpractice Case?
An affidavit of merit medical malpractice requirement is a pre-filing obligation imposed by state law that forces a plaintiff to attach a sworn statement from a qualified medical expert before a malpractice lawsuit can proceed. The expert must typically attest that the plaintiff’s claim has a reasonable basis in fact and that the defendant healthcare provider deviated from the accepted standard of care. The requirement functions as a threshold filter: courts and legislators who support these statutes argue they screen out frivolous suits before expensive litigation begins.
The content and timing of affidavit requirements vary considerably by state. Some states require the affidavit at the time of filing; others allow a window of 60 to 90 days after the complaint is submitted. Penalties for noncompliance are equally varied — some states treat a missing affidavit as a curable defect, while others mandate automatic dismissal. According to Cornell Law School’s Legal Information Institute, approximately 23 or more states currently impose some version of this gatekeeping mechanism, including Delaware, New Jersey, Michigan, Pennsylvania, Maryland, and Georgia.
Supporters of affidavit requirements argue they reduce frivolous filings and lower overall litigation costs in the healthcare sector. Critics argue these same requirements erect unnecessary barriers for legitimate plaintiffs — particularly unrepresented claimants who may have meritorious cases but lack the resources to retain a medical expert before the lawsuit is even filed. Research on these statutes suggests they do filter some nonmeritorious claims, but they also eliminate a measurable share of valid claims, especially when procedural deadlines intersect with short statutes of limitations.
How Affidavit of Merit Requirements Have Gated Malpractice Claims
To understand why Berk v. Choy matters, it helps to trace how affidavit of merit medical malpractice rules actually operate as a gatekeeping mechanism in practice. Harold Berk fractured his ankle in Delaware. He alleged that hospital staff improperly fitted his walking boot and that Dr. Choy failed to order timely follow-up imaging, a failure that he contended worsened his injury and extended his recovery. Berk filed suit in federal district court in Delaware on diversity jurisdiction grounds, invoking the court’s authority to hear disputes between citizens of different states involving more than $75,000.
Berk did not attach the affidavit of merit required under Delaware Code Title 18, Section 6853. The District of Delaware dismissed the case for failure to comply with the state statute. The Third Circuit affirmed. The Supreme Court granted certiorari and reversed, holding that Federal Rule of Civil Procedure Rule 8 — which requires only “a short and plain statement of the claim showing that the pleader is entitled to relief” — directly displaces Delaware’s affidavit requirement under the Rules Enabling Act. Because FRCP Rule 8 is a valid procedural rule occupying the same space as the state affidavit statute, the state rule simply cannot apply in federal court under the Court’s analysis.
This outcome is significant beyond Delaware. Every state that maintains an affidavit of merit medical malpractice statute now faces the same analysis: if a plaintiff can establish diversity jurisdiction in federal court, that plaintiff is no longer required to comply with the state’s pre-filing expert certification mandate. The case and the dismissal that preceded it illustrate precisely why the affidavit requirement carries such high stakes — noncompliance, in state court, ends many cases before any merits review occurs.
The Berk v. Choy Decision: What the Supreme Court Actually Held
Berk v. Choy, 607 U.S. 187 (2026), is the first majority Supreme Court opinion to resolve the question of whether state affidavit of merit statutes apply in federal diversity actions. A prior attempt by the Court to address this issue produced a three-way split among the justices, resulting in no controlling majority opinion and years of circuit-level inconsistency. The January 20, 2026, decision closes that gap decisively.
Justice Barrett’s majority opinion grounds the holding in the Hanna v. Plumer framework. When a valid Federal Rule of Civil Procedure is on point and conflicts directly with a state rule, the federal rule governs in federal court — provided the federal rule does not exceed congressional authority under the Rules Enabling Act. The Court found that FRCP Rule 8 is a valid rule, that it directly conflicts with Delaware’s affidavit requirement because the two cannot simultaneously apply, and that the substantive-versus-procedural Erie analysis does not enter the picture when a valid federal rule controls. Justice Jackson concurred in the judgment but wrote separately to express concern about the breadth of the ruling’s effect on state tort reform efforts.
For plaintiffs evaluating whether to use a personal injury settlement calculator to estimate the value of a potential malpractice claim, the forum in which that claim proceeds now carries direct financial implications — not merely procedural ones. A case that would have been dismissed in state court for a missing affidavit may now survive to settlement or verdict in federal court, dramatically altering its potential value.
How Berk v. Choy Changes Forum Strategy in 2026 and Beyond
The practical impact of Berk v. Choy on forum selection strategy in medical malpractice litigation cannot be overstated. For plaintiffs’ attorneys, the decision creates a clear tactical opening: any malpractice plaintiff who qualifies for diversity jurisdiction — meaning the plaintiff and all defendants are citizens of different states and the amount in controversy exceeds $75,000 — can now file in federal court and bypass the affidavit of merit medical malpractice requirement entirely. Given that the National Practitioner Data Bank reports average malpractice settlements ranging from approximately $242,000 to $425,000, the vast majority of colorable malpractice claims will easily clear the jurisdictional amount threshold.
Defense counsel and healthcare institutions face the opposite challenge. One of the primary functions of an affidavit of merit medical malpractice statute has historically been to force early expert review of claims — a mechanism that weeds out cases without credible expert support before defendants incur substantial legal fees. With that filter removed in federal court, defense teams should expect more cases to proceed to discovery without the pre-filing screening that state affidavit requirements provide. Commentators at firms tracking the decision have noted that marginal malpractice claims previously deterred by the affidavit requirement may now move forward in federal court, increasing early-stage defense costs and settlement pressure.
The table below summarizes key statistics relevant to understanding the scope of this ruling’s impact across state affidavit of merit medical malpractice jurisdictions.
| Metric | Data Point | Source |
|---|---|---|
| States with affidavit/certificate of merit requirements | 23+ states (including DE, NJ, MI, PA, MD, GA) | Cornell LII, 2026 |
| Average U.S. medical malpractice settlement (low estimate) | $242,000 | NPDB Annual Statistics, 2026 |
| Average U.S. medical malpractice settlement (high estimate) | $425,000 | NPDB Annual Statistics, 2026 |
| Federal diversity jurisdiction amount-in-controversy threshold | $75,000 | 28 U.S.C. § 1332, law.cornell.edu |
| Berk v. Choy decision date | January 20, 2026 | Supreme Court Slip Opinion No. 24-440 |
| Supreme Court vote | 8-1 (Justice Jackson concurring in judgment) | supremecourt.gov, 2026 |
For cases involving fatal medical errors, the stakes are even higher. Families pursuing wrongful death claims against hospitals or physicians in any of the 23-plus affected states should consult a wrongful death calculator to understand how forum selection — state versus federal court — may now affect both the procedural survival of their claim and its ultimate value. When a loved one’s death results from negligent surgical care or a missed diagnosis, the elimination of the affidavit barrier in federal court may mean the difference between a case that proceeds and one that is dismissed on a technicality before a single deposition is taken.
What Malpractice Plaintiffs and Defense Teams Should Do Now
In the months since the January 20, 2026, decision, litigants on both sides have been reassessing active cases and developing new intake protocols. For plaintiffs considering malpractice claims in any state with an affidavit of merit medical malpractice requirement, the threshold question is now whether diversity jurisdiction is available. If the defendant physician or hospital system is incorporated or headquartered in a different state than the plaintiff — a common scenario in large regional health systems — federal filing may be the strategically superior choice.
Plaintiffs should also be aware that Berk v. Choy does not eliminate the practical need for expert support. While the affidavit is no longer a pre-filing requirement in federal court, expert testimony remains essential to prove the standard of care, breach, and causation at trial. The ruling removes an administrative hurdle, not the underlying evidentiary burden. Plaintiffs who proceed in federal court without laying the groundwork for expert support early in the litigation may find themselves unprepared when expert disclosure deadlines approach under the federal rules.
Defense strategy in 2026 must adapt to account for a higher volume of federal malpractice cases reaching the discovery phase. Healthcare defendants and their insurers should anticipate increased early litigation costs and consider whether aggressive early motions practice — including challenges to expert qualifications under Daubert — may serve as a functional substitute for the gatekeeping role that affidavit requirements historically provided. The U.S. Courts caseload statistics portal will be worth monitoring through the end of 2026 to track whether federal malpractice filings increase in response to this ruling.
Frequently Asked Questions About Affidavit of Merit Medical Malpractice Requirements
What is an affidavit of merit in a medical malpractice case and why does it matter?
An affidavit of merit medical malpractice requirement is a state-law rule that requires a plaintiff to file a sworn statement from a qualified medical expert before a malpractice lawsuit can proceed. The expert must attest that the claim has a reasonable factual basis and that the defendant deviated from the accepted standard of care. Failing to file the affidavit in a state court that requires it typically results in dismissal of the case, sometimes with prejudice. The requirement matters because it functions as a pre-litigation gatekeeping mechanism — it can end a case before any evidence is gathered. After Berk v. Choy (2026), this requirement no longer applies in federal court when a valid FRCP rule conflicts with it.
Which states require an affidavit of merit in medical malpractice cases?
As of 2026, approximately 23 or more states impose some version of an affidavit or certificate of merit requirement for medical malpractice claims. States with well-known affidavit of merit medical malpractice statutes include Delaware (Del. Code Tit. 18 §6853), New Jersey, Michigan, Pennsylvania, Maryland, and Georgia, among others. The specific requirements — timing, content, qualifying expert credentials, and consequences for noncompliance — vary significantly from state to state. Plaintiffs and attorneys in any of these states should now carefully evaluate whether federal diversity jurisdiction is available, given that Berk v. Choy holds these requirements do not apply in federal court.
Does Berk v. Choy mean I don’t need a medical expert to file a malpractice case in federal court?
No. Berk v. Choy, 607 U.S. 187 (2026), eliminates the pre-filing affidavit requirement in federal diversity cases — it does not eliminate the need for expert testimony to win your case. Medical malpractice claims require expert witnesses to establish the standard of care, demonstrate that the defendant breached that standard, and prove causation between the breach and the plaintiff’s injury. The Supreme Court’s ruling removes an administrative gatekeeping hurdle at the pleading stage. The substantive evidentiary requirements — including expert disclosure, deposition, and testimony at trial — remain fully intact under the Federal Rules of Civil Procedure and federal evidentiary standards.
How does Berk v. Choy affect the value of a medical malpractice settlement?
The ruling can indirectly affect settlement value in several ways. First, cases that would previously have been dismissed in state court for failure to file an affidavit of merit medical malpractice document can now survive to the settlement stage in federal court, preserving their full value. Second, the availability of a federal forum may shift settlement dynamics — defendants who previously relied on early dismissal as a cost-control strategy must now account for higher early litigation costs. According to the National Practitioner Data Bank, average malpractice settlements range from approximately $242,000 to $425,000 nationally. Cases that reach the discovery and expert phase are generally better positioned to negotiate toward the higher end of that range than cases terminated at the pleading stage.
Can defendants remove a malpractice case from state court to federal court after Berk v. Choy?
Yes, in appropriate circumstances. If a malpractice case is originally filed in state court but the parties are citizens of different states and the amount in controversy exceeds $75,000, the defendant may be able to remove the case to federal district court under 28 U.S.C. § 1441. Once in federal court, Berk v. Choy would apply, and any pending or future affidavit of merit medical malpractice obligation under state law would no longer be enforceable. However, removal has strict procedural requirements and timing rules — it must generally occur within 30 days of service of the complaint. Defense attorneys who remove cases to federal court should understand that they are also removing the affidavit gatekeeping protection that state court would have provided, which is a strategic consideration that weighs in the plaintiff’s favor.
Legal disclaimer: The information on this page is provided for general educational purposes only and does not constitute legal advice, create an attorney-client relationship, or substitute for consultation with a licensed attorney in your jurisdiction.
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Christine Norwood is a medical malpractice research analyst with a background in healthcare quality and medical-legal analysis. She specializes in helping patients and families understand their rights when harmed by medical negligence. Ms. Norwood is not a physician or attorney and the information provided is for educational purposes only.