Medical monitoring claims are viable in Florida.

• Author: Gonzalez, Ervin A.
• Position: Court-supervised monitoring programs

The protection afforded by a court-supervised medical monitoring regime truly is an equitable solution to an enormous problem.

Unfortunately, situations arise where groups of individuals are exposed to dangerous substances. Although these people may not immediately manifest any physical injury, reasonable and prudent physicians often recommend that they be monitored or tested for the early onset of disease related to the exposure. In the landmark decision of Petito v. A.H. Robins Co., Inc., 25 Fla. L. Weekly D19 (Fla. 3d DCA Dec. 22, 1999),(1) Florida's Third District Court of Appeal ruled that, under appropriate circumstances, those exposed are entitled to pursue equitable relief in the form of a court-supervised medical monitoring program from a wrongdoer who caused the exposure.

Existing case law, equity, common sense, and the decisions of courts around the United States persuaded the Petito court to authorize equitable claims for court-supervised medical monitoring programs where viable and necessary to do justice.(2) Accordingly, it is now clear that Florida law allows equitable medical monitoring claims as a viable cause of action. The Petito decision is in line with Florida's long-standing principle that the purpose of injunctive relief is to "prevent an injury from occurring."(3)

What Is Medical Monitoring?

Medical monitoring is a program whereby those exposed to dangerous substances may obtain physical examinations and testing necessary to diagnose or detect the early onset of a disease or injury caused by the exposure to, or ingestion of, dangerous, hazardous, or toxic products. Medical monitoring may include chest X-rays, CT scans, MRIs, blood and urine tests, and other diagnostic examinations. The types of diagnostic testing required and the length of the surveillance should be decided by the court with the assistance from a court-appointed plan administrator and a court-appointed panel of physicians.(4)

When Is Medical Monitoring Appropriate?

The trial court's goal when establishing a medical monitoring program should be to promote the early detection and prevention of disease or injuries to persons exposed to dangerous, hazardous, or toxic products. Thus, medical monitoring should result in the saving of lives and the minimization of injuries.

Medical monitoring is possible whenever a group of persons has been exposed to, or has ingested, a dangerous, toxic, or hazardous product or substance that may later result in the development of a disease or injury. Exposure to or ingestion of products that may cause latent injuries or diseases such as cancer, heart disease, lung disease, birth defects, and other serious conditions are particularly appropriate for medical monitoring. Cases where medical monitoring may be proper include those involving asbestos, chemical spills, radiation leaks, Diethylstilbestrol (DES), fen-phen, defective heart valves, defective pacemakers, and other dangerous pharmaceutical and medical products.

Although not limited to class action cases, medical monitoring claims are best suited for class actions or mass tort situations. The procedures required to establish a medical monitoring program are comprehensive, and it may not make sense for a court to require a defendant to fund a medical monitoring program unless the number of persons adversely affected justifies the creation of such an equitable solution.

Facts and Procedural History of Petito

The Petito case began as a statewide class action for medical monitoring filed in equity against the makers and sellers of fen-phen,(5) a diet drug combination. Fen-phen was suspected of causing heart valve and lung damage at an alarming rate, compelling the Food and Drug Administration and the American College of Cardiologists to recommend medical monitoring and testing for those who used the pharmaceutical products.(6) The defendants in the underlying case filed a motion for judgment on the pleadings, arguing that Florida did not recognize a claim for future medical expenses without the existence of a discernible physical injury. The trial court granted the defendants' motion for judgment on the pleadings. The plaintiffs appealed the trial court's decision to the Third District Court of Appeal. The Third District reversed the trial court and recognized a cause of action in equity for court-supervised medical monitoring, even though the party seeking relief has not yet developed any identifiable physical injury or symptom, provided that certain elements are proven.(7)

Elements of a Claim

In order to succeed in a medical monitoring case, a plaintiff must prove the following:

1) The exposure to a substance at greater than normal background levels;

2) The substance is hazardous, dangerous or toxic;

3) The exposure results from the wrongful conduct of a defendant;

4) There is a significant increased risk of contracting a serious latent disease;

5) There is a monitoring procedure in existence for the early detection of the disease;

6) The monitoring procedure is different from that normally recommended in the absence of exposure to or ingestion of the hazardous or dangerous substance; and

7) The monitoring regime is reasonably necessary according to modern scientific principles.(8)

The above requirements are logical and comport with common sense. The exposure must be greater than what the population encounters in everyday life. The exposure must be to a hazardous substance or, in other words, a substance that can cause disease. The exposure must be caused by some wrongful conduct on the part of defendant. Most importantly, there must be diagnostic tests available that will detect disease--tests doctors recommend as reasonably necessary for those exposed.

Medical Monitoring Regime

If the requirements are satisfied, the trial court should use its equitable powers to create and supervise a medical monitoring program. The first step requires the trial court to appoint a qualified plan administrator to manage the plan and assist the trial court in selecting panel members, monitoring physicians, and in establishing the medical monitoring protocol.(9)

With the...