Hannah L. Graetz

On January 20th, 2026, in Berk v. Choy, 607 U.S.    (2026), the U.S. Supreme Court unanimously ruled that state law requirements for expert affidavits of merit in medical malpractice cases do not apply in federal court. The Court concluded that the plaintiff only needs to provide a “short and plain statement of the claim” when filing a malpractice lawsuit, effectively removing the affidavit of merit requirement. By removing this safeguard, the Court has opened the door for plaintiffs to file medical malpractice claims without having an expert review their allegations. The affidavit of merit exists to ensure that a malpractice claim has authoritative medical and legal support. Because litigation demands substantial time, energy, and emotional investment from both plaintiffs and defendants, ensuring that defendants are not subjected to unfounded claims by requiring a qualified medical expert to review the facts and determine whether a breach of the standard of care is likely an important check against allegations rooted in speculation rather than evidence. In the opinion from Choy, the majority identified Federal Rule of Civil Procedure 8 as the federal rule in conflict with Delaware’s affidavit requirement. The issue under review was whether a malpractice lawsuit may be dismissed for lack of an affidavit of merit. The majority concluded that Rule 8 sets a ceiling on what information a plaintiff is required to provide at the outset of litigation. The Court interpreted this standard to be a “short and plain statement of the claim,” finding that Delaware’s evidentiary requirement does not apply in federal court. Alternatively, Justice Jackson’s concurrence expressed a grounded view of the litigation process. She emphasized the key question of what is required to bring a medical malpractice action in federal court. Justice Jackson explained that the affidavit here is a “matter outside the pleadings,” highlighting that it cannot be required as a condition of filing under Rule 3 of the Federal Rules of Civil Procedure or considered at dismissal under Rule 21(d) of the Federal Rules. Concluding, the majority’s reliance on Rule 8 is unwarranted because it only governs what a pleading itself must contain, not what must accompany it. If the purpose of an affidavit of merit is to filter out meritless claims early, then eliminating this safeguard will not only strain our justice system, but also place a profound burden on healthcare providers. They may now face additional professional, personal, and emotional harm from claims that lack any expert foundation for merit. While it is essential that injured people have access to the courts, it is equally as important that people are not forced to defend themselves against unmeritorious claims. The Court’s ruling will have a significant impact on malpractice litigation. Federal courts may now see an increase of malpractice filings that lack early expert review. This will have a domino effect, potentially increasing discovery burdens and clogging dockets with matters not supported by expert review. This decision signals a shift toward more permissive filing standards, and we will continue to monitor the practical consequences of this new procedural landscape.