Berk v. Choy · ¶46

First and foremost, that formulation of the question assumes that Berk’s lawsuit has already been properly accepted by the court clerk (i.e., filed and docketed) and thus that §6853 is answering whether the “lawsuit may be dismissed” for want of the required affidavit. Ante, at 4. But that assumption jumps the gun. Delaware’s law states that “[n]o health-care negligence lawsuit shall be filed in this State unless the complaint is accompanied by: (1) [a]n affidavit of merit” or (2) “a motion to extend the time to file said affidavit.” §6853(a)(1) (emphasis added). The statute further specifies that “[i]f the required affidavit does not accompany the complaint or if a motion to extend the time to file said affidavit . . . has not been filed with the court, then the . . . clerk of the court shall refuse to file the complaint and it shall not be docketed with the court.” Ibid. (emphasis…

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