Barrett
WASHINGTON - In a case that will ease the path for some plaintiffs to file medical malpractice cases, the U.S. Supreme Court has ruled state laws that limit frivolous lawsuits don’t apply in federal court.
The justices last week, in Berk v. Choy, decided that state laws requiring the filing of an expert affidavit attesting to the merits of a malpractice lawsuit aren’t in play when a plaintiff files in federal court. Justice Amy Coney Barrett wrote the Court’s opinion in which seven other justices joined, and Justice Ketanji Brown Jackson filed a separate opinion concurring in the judgment.
The case involved a broken ankle Harold Berk sustained while he was visiting Delaware from out of state. Berk went to Beebe Medical Center, where Dr. Choy diagnosed the fracture and prescribed a protective boot. When placing Berk’s foot in the boot, hospital staff allegedly aggravated the fracture by twisting his ankle.
Dr. Choy discharged Berk rather than re-examine the ankle and recommended that Berk return after two weeks for a follow-up, according to Berk’s complaint.
A second X-ray taken at the follow-up visit revealed a deformity in the ankle requiring surgery, which Berk alleged was caused by malpractice committed by Dr. Choy and the hospital. Because Berk lives in Florida and the injury occurred in Delaware, “diversity jurisdiction” existed that allowed the case to be filed in federal court.
Delaware law requires that a plaintiff filing a medical malpractice complaint also file an affidavit from a medical professional attesting there are “reasonable grounds” to believe the defendant committed “health-care medical negligence.” The plaintiff can seek a one-time 60-day extension to file the affidavit.
According to the State of Tennessee, which filed a brief joined by other states in support of the defendants, such “affidavit-of-merit” laws exist in more than half of states and are targeted at preserving “rights for the injured without imposing an undue burden on providers, healthcare systems, or the courts.”
Because Berk failed to file the affidavit, even after the 60-day extension, a Delaware federal court dismissed the complaint and the U.S Court of Appeals for the Third Circuit affirmed.
Berk, a former lawyer who filed the case himself and was represented by Arnold & Porter Kaye Scholer in the Supreme Court, argued on appeal that his complaint should survive a motion to dismiss since Delaware’s law requiring an expert affidavit conflicts with the Federal Rules of Civil Procedure and, therefore, does not apply in federal court.
Supporting Berk’s position was the American Association for Justice, formerly the Association of Trial Lawyers of America. The AAJ argued that expert affidavit requirements disrupt the FRCP’s goal of a “just, speedy, and inexpensive resolution” of federal court litigation.
“Furthermore, state affidavit requirements impel experts to make what can only be tentative evaluations based on limited information,” the group argued. These “procedural” rules, the AAJ asserted, can lead to wasteful collateral litigation about whether the expert meets qualification requirements.
The American Hospital Association presented concerns that ignoring state-imposed expert affidavit requirements in federal court would limit the ability of state law to “reduce meritless malpractice claims and minimize the harms those claims inflict.”
The AHA cited a 2011 New England Journal of Medicine study finding that “by the age of 65, 75% of physicians in low-risk specialties, and 99% of physicians in high-risk fields like surgery, will have been subject to a medical malpractice claim.”
And many of these claims lack merit. According to the AHA, an American Medical Association report found that 65% of malpractice claims are dropped, dismissed or withdrawn. Citing the same report, the AHA noted that “a whopping 89%” of cases that go to trial “end in a verdict for the defendant.” A different study found that 54% of claims that do not settle are eventually dismissed by a court.
The coalition of 27 states led by Tennessee Attorney General Jonathan Skrmetti argued that the Court should “employ familiar federalism-based canons” and not override “state laws that are carefully crafted to advance important state interests and regulatory policies.”
The Court disagreed. “Analyzing whether a Federal Rule displaces state law is straightforward,” Barrett wrote. “We first ask whether the Federal Rule ‘answers the question in dispute.’” If so, “it governs.”
For the Court, the answer lies in Rule 8 of the FRCP, which “prescribes” only a “’short and plain statement of the claim showing that [the plaintiff] is entitled to relief.’”
“(E)vidence of the claim is not required,” Barrett opined.
Delaware’s affidavit-of-merit requirement, the Court found, is “at odds” with Federal Rule 8. The former requires actual evidence while the latter allows a plaintiff to proceed on “factual allegations” alone.
The Court recognized the lower bar the Federal Rules set for access to litigation and the likely associated costs. “By design, this system of pleading makes it relatively easy for plaintiffs to subject defendants to discovery—even for claims that are likely to fail,” it wrote.
Barrett noted that the Court has “consistently rejected” prior efforts by district courts to “protect defendants” from the burdens of discovery in certain types of cases, citing as examples cases involving §1983 actions against municipalities, employment discrimination suits and prisoner suits.
The Court stated that it has “’rejected every statutory challenge to a Federal Rule that has come before’” it, including challenges to the Rules governing class action certifications, service of process and sanctions for frivolous appeals.
Justice Jackson also would allow Berk’s complaint to proceed but reasoned that Delaware’s affidavit-of-merit requirement conflicted with Federal Rules 3 and 12, which govern when a federal action is commenced and defenses that may be raised, not Rule 8.
