In a recent 9-0 holding, the U.S. Supreme Court held that state-level “affidavit of merit” requirements for medical malpractice suits do not apply in federal court. This holding creates a notable divide in state and federal practice as more than half of all U.S. states have similar state-level pleadings requirements.
The case, Berk v. Choy, was filed in federal court but governed by Delaware state substantive law. Delaware, like many states, requires that plaintiffs filing medical malpractice suits submit an affidavit of merit — a statement from a qualified expert certifying that the lawsuit has a reasonable basis — either with the complaint or shortly after filing. When his complaint was dismissed for failure to submit an affidavit of merit, the plaintiff appealed.
The Supreme Court ultimately held that these affidavits of merit conflict with Federal Rule of Civil Procedure 8, and the state level requirements are preempted by federal law. Therefore, state requirements that pleadings be accompanied by affidavits of merit do not apply when a federal court is hearing a state law case simply because the parties are from different states.
Illinois law (735 ILCS 5/2-622) requires medical malpractice plaintiffs to file a Certificate of Merit with their complaint . Much like the Delaware affidavit of merit at issue in Berk, a Section 2-622 Certificate of Merit requires a plaintiff or their attorney to submit an affidavit confirming they have consulted with a qualified health professional before filing a healing arts malpractice claim.
The general policy rationale behind Illinois Section 2-622 is that certificates or affidavits of merit prevent the filing of frivolous lawsuits and ensure that only meritorious claims proceed to litigation. The impact of the Supreme Court’s decision in Berk v. Choy remains to be seen, but there is concern that this decision may result in an increase in frivolous medical malpractice claims in Illinois federal courts or if the Illinois legislature will consider changes to the requirement of an affidavit of merit in 735 ILCS 5/2-622.