We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
BORING… UNTIL IT’S NOT
The Supreme Court heard oral argument in a case that most would think makes melba toast exciting by comparison. But it’s a sleeper, a question of boring civil procedure that has major importance to federal inmates seeking to hold the Bureau of Prisons accountable for healthcare malpractice.
When prisoners receive negligent healthcare, many start planning to bring an 8th Amendment claim for deliberate indifference to serious medical needs. However, proving that ham-handed medical care was inflicted deliberately is hard. Add to that the fact that since the Supreme Court’s Egbert v. Boule decision in 2022, bringing any federal constitutional claim seeking money damages – a so-called Bivens action – is just about impossible.
Impossible and unnecessary, because healthcare negligence is medical malpractice, and medical malpractice is negligence. A prisoner can easily bring a negligence action against federal officers or employees under the Federal Tort Claims Act (explainer here). Proving negligence is much easier than proving deliberate indifference. And, face it, most of the lousy healthcare in the BOP system is the result of negligence rather than a deliberate design to inflict cruelty on inmates. As Hanlon’s Razor cautions us, “Never attribute to malice that which is adequately explained by stupidity.”
There is a catch, however. When a prisoner brings a malpractice suit, he or she must do so in the state where the negligence occurred. The suit is judged according to state malpractice law, although it is brought in federal court. And most states have rules or statutes that require the plaintiff bringing the lawsuit to accompany his or her complaint with an affidavit from an expert that sets out the standard of care in the state and the expert’s belief that the defendant BOP doc or nurse failed to live up to it.
These are typically called “affidavits of merit,” and they are required in order to discourage frivolous lawsuits. They’re tough for inmates, however, even those with strong cases, because no expert is going to provide such an affidavit unless hired. The last time I hired one for a prisoner, it cost $5,000 (and that was eight years ago). Most inmates just don’t have that kind of money lying around.
The affidavit of merit rule has wiped out thousands of inmate FTCA suits over the years, making it impossible for them to get past the complaint stage to where they can engage in discovery (and maybe obtain a settlement). I have not been alone in arguing to courts that the law requires applying federal rules of procedure but state laws governing the substantive issue of whether malpractice has occurred. This holding, as first-year law students can recite in their sleep, is Erie Railroad Co. v Tompkins.
Erie Railroad Co. v. Tompkins is a landmark Supreme Court decision in which the Court held that the United States does not have a general federal common law. Instead, while federal courts may follow federal procedural rules – such as the Federal Rules of Civil Procedure – they must apply state substantive law, not federal law, to lawsuits that do not involve federal questions. Most American lawyers and legal scholars regard Erie as one of the most important decisions in U.S. Supreme Court history, a decision that has been described as “go[ing] to the heart” of the American system of federalism.
The issue of whether state laws requiring an affidavit of merit with a medical malpractice complaint are substantive or procedural has now reached the Supreme Court. Last Monday, the Court heard argument in Berk v. Choy, a case that asks whether the Delaware state affidavit of merit requirement is a procedural requirement – in which case it does not apply in a federal court FTCA suit – or a substantive requirement that federal courts have to honor.
At the argument, some of the Justices viewed the requirements as “unacceptably hostile to the central conception of the federal trial system,” according to SCOTUSBlog:
Justice Elena Kagan led that group, drawing on a big-picture conception of the Federal Rules of Civil Procedure doubtless influenced by her decades teaching about the subject as a professor. For Kagan, the Delaware rules fly in the face of “the entire thrust of the Federal Rules,” which were “meant to establish a notice pleading system where all you had to do was say: ‘Here I am, here’s my claim, I’m going to be seeking damages, the end,’ and everything else was supposed to happen later in the normal course of things.”
Justice Ketanji Brown Jackson, for example, saw Delaware’s rule as hostile to the federal system: “[W]e have this Delaware law saying what is necessary to file or initiate a malpractice lawsuit as a matter of procedure. You have to have this separate [affidavit]. Notably, it’s not evidence. It is just what is a necessary step to initiate this lawsuit. And under federal law, no such thing is required. The federal law says that the action commences by filing a complaint with the court.”
Justice Sonia Sotomayor pointed to the requirements for filing an answer to a complaint: “The Federal Rules require that an answer be served in 20 days; the Delaware rule says the answer doesn’t have to be served until the affidavit’s filed.”
The defendant hospital argued that the Court shouldn’t focus on details like those cited by Jackson and Sotomayor, contending that there was no reason “that a federal court must ignore the entirety of a state statute if any part of it might conflict with a federal rule in some case.”
Several justices recognized that such an approach would ask SCOTUS to pick and choose among the various pieces of the Delaware statute. Justice Neil Gorsuch said, “You are cracking and extracting… some things from the Delaware rule that you would apply in federal court and other things that you wouldn’t… [W]e’re creating this Frankenstein of a statute, right? We’re taking bits and pieces and adapting it, but what authority does a federal court have to rewrite Delaware law in that fashion?”
SCOTUSBlog writer Ronald Mann said that it was difficult to determine from the argument how the Court would rule. “[I]t is safe to say that several justices will reject Delaware’s procedures, and hard to believe that Kagan won’t write something, but not at all clear what side the court, as a whole, will favor.”
A ruling invalidating the affidavit of merit requirement would be a major victory for inmate FTCA filers.
Berk v. Choy, Case No 24-440 (argued October 6, 2025)
SCOTUSBlog.com, Justices debate state limits on malpractice actions for cases in federal court (October 7, 2025)
~ Thomas L. Root
A Columbia, South Carolina, newspaper spotlighted the state of Federal Bureau of Prisons employees since the shutdown, and the picture was not a pretty one: “As essential workers, employees at federal prisons are still required to show up every day. But with funding frozen due to the government shutdown, employees are facing an uncertain future. With no immediate end in sight for the shutdown, the paycheck they received last week might be the last one they see for a while. ‘Morale is very low,’ said Talmadge Coleman, who recently retired from FCI Edgefield and is president of the Local 0510 at the prison. Staff were ‘very disgruntled’ at the situation…”
President Trump has directed through executive orders that the BOP and other agencies no longer honor the collective bargaining agreements between the agencies and about a half million workers. “The agency doesn’t recognize us anymore, so that’s one less thing that we can help with,” said Brandy Moore White, president of Council of Prison Locals 33, a union that represents federal prison employees. “It’s just disaster upon disaster.”
