Underlying Facts
Harold Berk suffered a fall that resulted in a significant ankle injury. He alleged that he received deficient care while hospitalized in Delaware that exacerbated his ankle injury as well as pre-existing wounds on his legs. He subsequently obtained care from the Rothman Entities.
The Rothman Entities refused to provide Berk with an affidavit of merit attesting that, in their expert opinion, Berk’s malpractice claim against his initial providers was meritorious. Berk unsuccessfully attempted to schedule an appointment with Dr. Steven Raikin to request the affidavit. Staff initially explained that Dr. Raikin was on leave but
later informed Berk that Dr. Raikin had in fact retired for medical reasons. Berk then scheduled a follow-up appointment with Dr. David Pedowitz. When Berk requested an affidavit of merit at that appointment, Dr. Pedowitz stated that he did not have time to discuss the request. Berk subsequently made multiple written requests to Dr. Pedowitz and Dr. Alexander Vaccaro, the chief executive officer of the Rothman Entities, but Dr. Vaccaro’s secretary informed Berk that the Rothman Entities were unable to provide the letter. Berk also contacted Dr. Raikin on his personal cell phone. Dr. Raikin informed Berk that, although Berk “had a good medical malpractice case,” Berk needed to make his request to the Rothman Entities, whose policies prevented Dr. Raikin from providing Berk an affidavit of merit. Although Berk contacted multiple providers other than the Rothman Entities, he was ultimately unable to obtain an affidavit of merit. Delaware law requires plaintiffs bringing a medical malpractice claim to file an affidavit of merit with the pleading. Del. Code Ann. tit. 18, § 6853(a). So when Berk filed a malpractice claim in the United States District Court for the District of Delaware against his initial providers but failed to include an affidavit of merit, his complaint was dismissed.
In his subsequent lawsuit filed against the Rothman Entities and others, alleging intentional deprivation of legal recourse, Berk alleged that his treating physicians and the Rothman Entities refused to provide him with an affidavit of merit attesting that his medical malpractice claim against different healthcare providers was meritorious, and that because Delaware law requires plaintiffs bringing a medical malpractice claim to file an affidavit of merit with the pleading, his medical malpractice lawsuit was dismissed.
Intentional Interference With Contract
To state a claim for intentional interference with a prospective or existing contract under Pennsylvania law, a plaintiff must allege:
(1) the existence of a contractual, or prospective contractual relation between the complainant and a third party;
(2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a
prospective relation from occurring;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual legal damage as a result of the defendant’s conduct.
The United States Court of Appeals for the Third Circuit held in its April 23, 2025 Opinion: “the District Court dismissed the intentional interference claim on the ground that, because the Rothman Entities were not obliged to provide an affidavit of merit, they could not have interfered in any prospective or existing contract. While the existence of contractual freedom alone is not a complete defense to a claim for intentional interference with a contract, we will
affirm because we agree with the District Court that Berk has not adequately stated his claim … The amended complaint contains no allegations that the defendants “not only . . . intended the interference, but . . . acted in part at least for the purpose of accomplishing it.””
Source Berk v. Rothman Institute Orthopedic Foundation, No. 24-2293.
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