Berk v. Choy · ¶50

First and foremost, that formulation of the question assumes that Berk's lawsuit has already been properly accepted by the court clerk (i. e., fled and docketed) and thus that § 6853 is answering whether the “lawsuit may be dismissed” for want of the required affidavit. Ante, at 192. But that assumption jumps the gun. Delaware's law states that “[n]o health-care negligence lawsuit shall be fled 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 specifes 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 fled 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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