Medical Monitoring, as Adopted in the Restatement (Third) of Torts, Raises Scientific and Other Issues that Warrant Attention

• Pages: 3-39
• Date: 01 July 2024
• Published date: 01 July 2024
• Author: Robert P Charrow
• Subject Matter: Derecho Público y Administrativo

Jurimetric s Journal Jurimetrics: Summer 2024

Medical Monitoring, as Adopted in the Restatement

(Third) of Torts, Raises Scientific and Other Issues that

Warrant Attention

Robert P Charrow

Jul 01, 20 24 46 min read

Summary

The American Law Institute (ALI) recently recognized, as part of the Restatement (Third) of Torts,

“medical monitoring,” either as a separate tort or as a possible remedy for an existing cause of

action.

The new tort’s primary purpose is to shift the cost of monitoring to the tortfeasor to “foster

access to beneficial diagnostic testing,” especially for those who may lack the financial resources

or health insurance.

The new tort requires, among other things, that the monitoring “makes expedited detection and

treatment of the . . . future bodily harm both possible and beneficial” and is reasonably

necessary “to prevent or mitigate the [future bodily] harm.”

The tort’s benefit focuses exclusively on those who would develop the ailment in the future. This

appears to be inconsistent with how the scientific community and three U.S. Public Health

Service (PHS) agencies assess a monitoring program; all recognize explicitly that monitoring is

not a risk-free endeavor and can harm those who may never develop the ailment through false

positive test results that lead to further higher risk diagnostic tests.

MoMo Productions via Getty Images

Abstract: The American Law Institute (ALI) recently recognized, as part of the

Re statement (Third) of

Torts

, “medical monitoring,” either as a separate tort or as a possible remedy for an existing cause of

action. Medical monitoring involves periodic diagnostic examinations of those at significantly

increased risk of developing an ailment in the fu ture. Monitoring is supposed to enable early detection

of the ailment with the hope of improving the patient’s prognosis. The new tort’s primary purpose is to

shift the cost of monitoring to the tortfeasor to “foster access to beneficial diagnostic testing,”

especially for those who may lack the financial resources or health insurance. Compelling the tort -

feasor to pay for the monitoring costs would, according to ALI, ease the victim’s finan cial burden and

also promotes deterrence.

The new tort requires, among other things, that the monitoring “makes expedited detection and

treatment of the . . . future bodily harm both possible and beneficial” and is reasonably necessary “to

prevent or mitigate the [future bodily] harm.” The tort’s ben efit focuses exclusively on those who

would develop the ailment in the future. This ap pears to be inconsistent with how the scientific

community and three U.S. Public Health Service (PHS) agencies assess a monitoring program; all

recognize explicitly that moni toring is not a risk-free endeavor and can harm those who may never

develop the ailment through false positive test results that lead to further higher risk diagnostic tests.

False positives outnumber true positives usually by an order of magnitude. Courts should avoid

adopting the ALI tort unless it is revised to reflect the standards of the scientific commu nity. Also, a

court should consider whether it has the necessary expertise to evaluate a monitoring proposal or

instead, should defer to or seek the assistance of the PHS before imposing a potentially harmful

monitoring scheme. In light of the Affordable Care Act, it is unclear whether there remains a

significant cohort of uninsured to justify a new tort that could direct decision-making away from the

experts at the PHS in favor of lay courts. This needs to be further explored. ALI also recommends that

to ease the financial burden on defendants, monitoring costs should be borne by government or

private health plans. This is likely inconsistent with federal law and may undermine the tort’s

deterrence ra tionale.

Citation: Robert P. Charrow,

Medical Monitoring, as Adopted in the

Restatement (Third) of Torts

,

Raises Scientific and Other Issues that Warrant Attention

, 64 Jurimetrics J. 341–73 (2024).

The ALI Reporters have done a masterful job of synthesizing a divergent body of case law into an

elegant cause of action that balances opposing consid erations. Thus, a tortious act that causes a

significant increase in risk of devel oping an ailment is not sufficient to satisfy the elements of the New

Tort; the risk, after having been increased, must also be so substantial (1) that it warrants medical

monitoring, (2) that the monitoring would be beneficial to those who would go on to develop the

ailment, and (3) that monitoring or screening would not have been medically indicated absent the

increased risk. Nonetheless, the New Tort is controversial and, as this Article points out, there are

issues that remain to be addressed and resolved.

The American Law Institute (ALI), after a debate spanning multiple annual meetings, voted on May 20,

2024, to recognize, as part of the

Restatement (Third) of Torts

, “medical monitoring,” either as a

separate tort or as a possible remedy for an existing cause of Medical monitoring has been

adopted in a number of states as a way of addressing, absent present injury, a significant increase in

the risk of developing a disease or ailment following tortious expo sure to a toxic substance, radiation,

or other impact. The tortfeasor is obligated to pay for the monitoring in the form of periodic medical

examinations and tests intended to diagnose those specific medical conditions associated with the im -

proper release or impact. The goal is to detect those conditions earlier than would otherwise be the

case thereby improving a patient’s prognosis.

To now, the controversy has been largely conceptual—can a court properly label behavior as tortious

where there has been no present or imminent physical injury, only an increased possibility of

developing one in the future? Because most jurisdictions that have adopted medical monitoring do

not require actual or imminent physical injury, monitoring claims are viewed, by its proponents, as

“non-traditional

There is also vibrant disagreement over the number of states that have adopted the tort. The ALI

Reporters note that the nation (including the District of Columbia) is divided almost equally: seventeen

states have adopted or appear to have adopted the tort; nineteen have declined or appear to have

declined to recognize the tort; and fifteen have yet to consider the issue or it is unclear where they

Others claim that only fourteen states have adopted the tort and twenty-eight states have

rejected Many courts have adopted the tort in one form or another as a way of enabling those

without health insurance or financial means to participate in a medical monitoring program if the risk

of developing a particular ailment has been significantly increased to a substantial level by the

defendant’s tortious Other courts have rejected the tort primarily on conceptual grounds,

namely that “in a negligence action, an increased risk of harm is not an Another reason

given is that “dispensing with the phys ical injury requirement could permit ‘tens of millions’ of

potential plaintiffs to recover monitoring costs, effectively flooding the courts while concomitantly

depleting the purported tortfeasor's resources for those who have actually sus tained

action.

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