Berk v. Choy · ¶1

Delaware law provides that a plaintiff may not sue for medical malpractice unless a medical professional attests to the suit's merit in an “affidavit of merit” that “accompanie[s]” the plaintiff 's complaint. Del. Code, Tit. 18, § 6853(a)(1). Petitioner Harold Berk sued Dr. Wilson Choy and Beebe Medical Center in federal court for medical malpractice under Delaware law, but failed to provide the affidavit required by § 6853. Berk argued that § 6853 is not enforceable in federal court because it is displaced by the Federal Rules of Civil Procedure. The District Court dismissed Berk's lawsuit for failure to comply with Delaware's affidavit law. The Third Circuit affirmed.

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