The U.S. Supreme Court recently issued a decision in Berk v. Choy that clarifies a long-standing procedural battleground in medical malpractice litigation. In a decision authored by Justice Barrett, the Court held that state laws requiring plaintiffs to file an “affidavit of merit” (a statement from a medical expert attesting to the validity of the case) before filing suit do not apply in federal court.
While the immediate procedural impact on Washington state practice may be limited, the ruling reinforces vital principles about access to justice and the dangers of creating favored classes of defendants.
The Ruling: Federal Rules Reign Supreme
The case arose when Harold Berk sued a Delaware medical center and doctor in federal court. Delaware law forbids filing a medical malpractice lawsuit unless it is accompanied by an affidavit of merit from a medical professional. Berk failed to provide one, and his case was dismissed.
The Supreme Court reversed that dismissal. The Court reasoned that the Federal Rules of Civil Procedure—specifically Rule 8—already answer the question of what a plaintiff must do to start a lawsuit. Rule 8 requires only “a short and plain statement of the claim showing that the pleader is entitled to relief”. By specifying this standard, the Federal Rules implicitly exclude additional burdens like pre-suit expert affidavits. When a state law conflicts with a valid Federal Rule, the Federal Rule wins.
Comment on Increased Malpractice Insurance Rates
The Court’s opinion begins with the statement that the cost of malpractice insurance for doctors and hospitals has significantly increased in some areas of the country, which has led some state legislatures to make it much harder to bring medical malpractice lawsuits. It’s funny (but not actually) how we never think to ask if policymakers should direct their attention to the quality of healthcare that is being delivered to our community members.
In fact–even without these sweetheart protections for medical professionals–it is costly for patients to seek accountability in court. Insurance companies throw their vast resources at anyone who seeks justice, often more than it would take to pay a fair settlement by accepting responsibility from the outset.
Why the Impact in Washington Is Limited
For Washington practitioners, Berk confirms the status quo rather than disrupting it. This is due to two key factors.
- First, medical malpractice cases are typically state-law torts involving local parties. They rarely end up in federal court because diversity jurisdiction (which requires parties to be from different states) is seldom triggered.
- Second, and most importantly, the Washington Supreme Court struck down our state’s own certificate of merit requirement nearly two decades ago. In Putman v. Wenatchee Valley Medical Center (2009), our state’s high court ruled that RCW 7.70.150—which required a similar certificate of merit—was unconstitutional.
Therefore, whether you are in Washington state court or a federal court located in Washington, you are not currently required to attach an expert’s affidavit just to file a complaint.
The Deeper Message: Accountability vs. Insulation
While the legal mechanism in Berk was technical (the “Erie doctrine”), the underlying policy debate is about power. Laws requiring pre-suit affidavits are often lobbied for by the medical industry to create a unique shield against litigation—a shield not enjoyed by drivers, business owners, or other defendants who are sued for negligence.
Washington must remain wary of creating a favored class of citizens who are extra-insulated from accountability. When the state imposes high barriers just to enter the courthouse, it effectively says that the rights of patients injured by powerful professionals matter less than the convenience of those professionals. Berk serves as a reminder that the courthouse doors should not be locked by onerous, specialized entry requirements that apply only to specific types of powerful defendants.
Rule 8 is Not a License to Fabricate
It is critical, however, to understand what this ruling does not do. Removing the affidavit requirement does not mean plaintiffs can simply “make up” allegations.
Rule 8 is a floor, not a loophole. It demands that allegations be grounded in fact. Furthermore, Rule 11 still binds all attorneys, requiring them to certify that their factual contentions have evidentiary support after a reasonable inquiry. The absence of a pre-suit affidavit is not an invitation to file frivolous suits; it is simply a removal of a procedural hurdle that disproportionately blocked access to justice for legitimate victims who might need discovery to fully prove their claims.
Berk v. Choy validates Washington’s own rejection of these burdensome requirements and ensures that federal courts remain open to all legitimate claims, regardless of the defendant’s profession.
Isaac Ruiz