Berk v. Choy · ¶67

While the statute itself does not so specify, the Delaware Supreme Court has interpreted § 6853 to mean that (assuming the clerk of court accepts an affidavit-free medical malpractice action and dockets the case notwithstanding the statute's prohibition) “[t]he filing of a healthcare negligence action without the requisite affidavit of merit constitutes grounds of dismissal of medical negligence claims as a matter of law.” Hall v. Sorouri, 996 A. 2d 793 (Del. 2010) (Table). That reading of Delaware law answers the question, “What can a court consider when dismissing a medical malpractice case?” Because “[t]he highest state court is the final authority on state law,” Fidelity Union Trust Co. v. Field, 311 U. S. 169, 177 (1940), we must read this statute as that court does, i. e., as establishing dismissal requirements for medical malpractice cases. Thus, if a valid Federal Rule answers…

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