Medical monitoring in North America: does this horse have legs?

• Author: Hamer, David I.W.

IN THE BEGINNING, the tort of negligence required proof of injury 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' risk 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 injury at 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 at 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.

1. 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 at risk of injury. If the threshold for qualifying as "at risk" is low, it is possible to imagine class actions involving millions of plaintiffs. Indeed, the United States Supreme Court has noted that medical monitoring claims absent physical injury 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 risk that by the time plaintiffs with a manifested injury 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. (7)

   Opponents of medical monitoring also point out that these awards may not increase social utility at all:

   [M]any scientists and medical professionals advise against medical monitoring for categories of diseases where symptoms generally develop in patients at or before the time medical monitoring can detect the diseases, such as some forms of cancer or nephrotoxicity resulting from lead exposure. In these categories, medical monitoring becomes "questionable and costly," not to mention redundant, because it alerts professionals to a problem no sooner than they would be alerted otherwise by a patient experiencing symptoms of the disease. (8) At best, medical monitoring tests in these circumstances are unhelpful to their recipients. At worst, medical monitoring tests harm their recipients, either by providing them with false negative results, decreasing the plaintiff's incentive to be sensitive to early symptoms, or by providing false positive results, putting plaintiffs through unnecessary stress and grief. (9)

   Opponents of medical monitoring also highlight the radical impact these claims have on the tort system: no longer is it necessary for a plaintiff to have a present physical injury to plead a successful claim in negligence. Recognizing the significant changes that liability for medical monitoring would bring to the legal system, many courts have refused to recognize these claims in the absence of explicit legislative authorization. Given the competing policy issues present in these cases, those courts recognize that legislatures are the more appropriate bodies to balance these issues.

   Some courts do approve medical monitoring claims without legislative basis, (10) but decisions across jurisdictions are inconsistent. Uncertain application of law unnecessarily increases the cost and frequency of litigation. Inconsistent application has also led to claims of forum-shopping by plaintiffs. Consider one case where the plaintiffs resided in the state of New Jersey, complained of a surgery conducted in Delaware, but chose to bring the claim in Pennsylvania which, like New Jersey but unlike Delaware, recognized claims for medical monitoring. (11)

   Medical monitoring claims arguably require courts to alter the fundamentals of the tort system, which may produce unintended consequences. Judicial attempts to extend rights to plaintiffs may in effect deprive them of recourse when it is most needed. By allowing class members to recover medical monitoring costs prior to suffering a physical injury, courts may deprive others of the ability to bring a claim in negligence where the fault, but not the manifestation of injury, occurred outside the limitation period. The Supreme Court of Kentucky highlighted this irony in its justification for refusing a medical monitoring claim in Wood v. Wyeth Ayerst Laboratories. (12) The Court in Wood first cited Louisville Trust Co. v. Johns-Manville Products, (13) in which the defendants argued that plaintiffs' claim involving asbestos exposure was time-barred because exposure had occurred outside of the limitation period. The Louisville Trust court rejected this defense, noting that the plaintiff could not have been expected to bring suit at the time of exposure because at that time he had no symptoms or knowledge of injury. (14)

   In Wood, The Supreme Court of Kentucky affirmed this reasoning, holding that a medical monitoring claim could not succeed. Reminding the plaintiffs that this ruling may later be helpful to them, the Court noted that if:

   the [medical monitoring] tests revealed the presence of physical disease resulting from the drug ingestion, a strong argument could be made that the victims are precluded from recovering additional damages because they have already recovered on the claim of negligence. (15) Despite these problems associated with medical monitoring claims, many courts have accepted them. The treatment of these claims in North American jurisdictions is described in the following section.

2. The State of the Law in North America: An Uncertain Mosaic

   Courts throughout in the United States have considered medical monitoring claims extensively. That said numerous state supreme courts to address these claims have analyzed them inconsistently, with some states recognizing medical monitoring as a stand-alone claim and others rejecting it. (16) In 1984, a New York Supreme Court first held that a medical monitoring claim could sustain a claim for damage. (17) Several months later, the Court of Appeals for the District of Columbia first sustained a judgment against defendant for medical monitoring costs without requiring proof of physical injury in the plaintiffs. (18)

   Before and after these cases, other courts explicitly rejected medical monitoring as a basis for a claim in tort. Most notably, the U.S. Supreme Court refused a claim for medical monitoring brought under the Federal Employers Liability Act. (19) The clear trend in most U.S. jurisdictions has been to reject medical monitoring claims where there is no present physical injury. (20) Despite this trend, the law in this area is far from settled. In Guinan v. A.I. DuPont Hospital for Children, for example, the court accepted the novel theory that a tort claim for medical monitoring can be applied in the context of a claim involving medical procedures and devices. (21)

   Canadian courts have had much less experience with medical monitoring. The scarce jurisprudence that exists suggests that Canadian courts remain relatively open to these claims. Several class action suits advancing medical monitoring claims have been certified for settlement purposes, though few judgments address the underlying novelty or controversy. (22) Two judgments that have acknowledged problems associated with medical monitoring claims have looked to U.S. case law for guidance. Of these, Wilson v. Sevrier settled, (23) and the other claim is pending...