On March 10, 2025, the United States Supreme Court agreed to hear arguments in Berk v. Choy(No. 24-440) regarding the application in federal court of state laws requiring pre-litigation service of an affidavit of merit in medical malpractice cases that find their way into federal courts under diversity jurisdiction. Federal circuit courts of appeal are split in their decisions on whether these pre-litigation affidavit of merit laws are binding in federal courts.
Affidavits of Merit and Medical Malpractice in the Tri-State
West Virginia (WV), Kentucky (KY), and Ohio (OH) have statutes requiring the submission of a certificate or affidavit of merit from a healthcare provider who meets statutory requirements to bedeemed a qualified expert. These laws are part of tort reform efforts to protect healthcare providers and their insurers from frivolous medical liability lawsuits. Failure of plaintiffs to meet these pre-litigation requirements can result in dismissal of their claims.
Healthcare providers in the Tri-State Area, and those that insure them, need to watch this case and be aware of the potential implications of the Supreme Court’s eventual ruling on this matter.
Medical Malpractice Liability in WV, KY, and OH
The laws regarding medical malpractice liability in WV are set forth in WV Code §§55-7B-1 to 55-7B-12. The pre-litigation requirements, found at WV Code §55-7B-6 , include that a claimantmust serve a notice of claim on potential defendants along with a “screening certificate of merit” executed under oath by a qualified healthcare expert. WV requires this notice of action to be served at least 30 days in advance of filing a civil action for medical professional liability. There are limited exceptions to providing the “screening certificate of merit” within that time frame.
Kentucky and Ohio also have statutes requiring an affidavit of merit to be included when an action is commenced or a complaint is filed alleging medical malpractice.
Federal Court Opinions on Affidavits of Merit
Federal law does not require an affidavit or certificate of merit in medical malpractice casespending in federal court. The federal courts are split on the issue of whether these state laws should apply and potentially limit a plaintiff’s ability to file a claim.
Generally, absent federal law governing an issue, US federal courts observe state law regarding substantive issues and federal law for procedural ones. Some federal courts, including the Fourth Circuit (containing WV) and the Sixth Circuit (containing KY and OH), have held that pre-litigation requirements, like affidavits of merit, are procedural issues and conflict with the Federal Rules of Civil Procedure. These courts have not enforced state law pre-litigation requirements. Other circuits, including the Third and Tenth, have held that state pre-litigation laws are substantive in nature and must be enforced in medical malpractice actions.
Speak to a Medical Malpractice Defense Attorney
The outcome of the Supreme Court’s review of Berk v. Choy will impact healthcare providers and their insurers in WV, KY, OH, and throughout the country.
Charlotte H. Norris, licensed in West Virginia and Kentucky and admitted to practice in the U.S. Fourth and Sixth Circuits, has provided legal counsel and representation to healthcare clients for more than 34 years. She follows and stays up-to-date on legal issues that impact healthcare providers and facilities so that she can help her clients avoid and defend against litigation. Charlotte and her colleagues at Jenkins Fenstermaker, PLLC are ready to help you with risk management, professional licensure, and malpractice needs. Call (304) 523-2100 or complete the law firm’s online contact form to request a consultation.