Title: Medical Monitoring in North America: Does This Horse Have Legs?
Abstract: IN THE BEGINNING, the tort of negligence required proof of before requiring compensation: Proof of negligence in the air, so to speak, will not do. (1) Then claims for the cost of medical monitoring arrived on the North American scene in the 1980s. The thrust of these claims was: where a defendant's tortious conduct increases plaintiffs' of developing diseases, that defendant should be liable for the cost of monitoring the plaintiffs' health required to detect the early onset of disease linked to that conduct. The most radical form of these claims asserted that a defendant is liable for the medical monitoring costs of a plaintiff even where the plaintiff has suffered no physical all. The basic theory of medical monitoring held that defendants may be liable for the medical monitoring costs of plaintiffs who have not and might not suffer an injury. Medical monitoring claims continue to be controversial, and their universal acceptance in North American courts remains uncertain. Although readers undoubtedly are familiar with the topic, acceptance of medical monitoring claims varies widely among states. During the nearly ten years since the last medical monitoring ruling by the U.S. Supreme Court, (2) the parameters of the debate have been established. However, the issues raised by medical monitoring claims are far from being resolved. This article explores both theoretical issues underlying medical monitoring controversy and the current state of the law on this topic in North America (with a side glance England). By addressing the policy debate surrounding medical monitoring and analyzing the elements of medical monitoring class action claims required by courts that accept these claims, this article provides potential defendants with an idea of the litigious threats they may face and effective ways to respond. I. The Policy Debate: Desirable or Disastrous? Typically launched as elements of class action suits, some courts and commentators greeted medical monitoring claims as a way to allocate health care expenses more efficiently. In the context of an environmental tort, the Supreme Court of Kentucky has outlined four policy justifications in favor of allowing medical monitoring: (1) allowing recovery fosters access to medical testing and facilitates early diagnosis and treatment; (2) recognizing such claims deters irresponsible distribution of toxic substance; (3) early monitoring may prevent future costs and reduce the potential liability of the tortfeasor; and (4) ... basic notions of fairness [are satisfied] by assuring that wrongfully exposed plaintiffs recover the costs of medical treatment. (3) More cautious observers have noted the many dangers posed by these claims. (4) By eliminating injury as an essential element of the tort claim, the scope of a defendant's liability becomes seemingly limitless. (5) Under a medical monitoring tort, defendants are liable not only to those to whom they caused injury, but also to those whom they simply put of injury. If the threshold for qualifying as at risk is low, it is possible to imagine class actions involving of plaintiffs. Indeed, the United States Supreme Court has noted that medical monitoring claims absent physical could permit tens of millions of individuals to recover medical monitoring costs. (6) The limitless scope of liability is obviously troublesome for defendants, but it should also be of serious concern to plaintiffs. By allowing medical monitoring claims, courts transfer a portion of defendants' limited resources to plaintiffs who have not suffered and will not suffer an injury. This increases the that by the time plaintiffs with a manifested sue the defendant, that defendant's resources will be depleted. Further, medical monitoring plaintiffs in class actions may be unfairly disadvantaged in a settlement that may fail to adjust for inflation, account for changes in medical understanding, or allow class members any practical right to opt-out of settlement. …
Publication Year: 2010
Publication Date: 2010-01-01
Language: en
Type: article
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Cited By Count: 1
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