Recognition of "medical monitoring" claims in Florida.

AuthorDiPaola, Theresa A.

On its shadow side, the social progress generated by the rapid advances in American industry and technology over the last century spawned a grim army of silent killers--latent industrial and occupational diseases often manifesting years after exposure to hazardous substances in the workplace or environment. The multitude of claims arising out of these insidious injuries presented unique challenges to the conventional tort system, which traditionally developed to provide a system of compensation for redress of individual, immediate wrongs.

Responding to society's altered industrial fabric, the tort common law formulated a new cause of action to provide redress in those situations where there is a sizable time lag between the wrong and manifestation of injury--the "medical monitoring" or "medical surveillance" claim. Distinct from the "enhanced risk" claim which seeks to recover lump sum damages for the possibility of future disease or condition materializing, discounted by the probability of its occurrence,(1) the "medical monitoring" claim contemplates recovery of costs of periodic future diagnostic testing to detect latent diseases or disorders caused by tortious exposure to hazardous substances. Cognizance of this claim finds its genesis in suits involving mass industrial or environmental contaminations such as asbestos exposure,(2) groundwater contamination,(3) landfill toxins,(4) PCBs and related organic chemicals,(5) petroleum product emissions,(6) and radioactive emissions.(7)

In a case of first impression in Florida, the Third District recently joined the growing number of jurisdictions recognizing a distinct cause of action for medical monitoring, extending its application to the field of pharmaceutical products liability in Petito v. AH Robins Co., Inc., 750 So. 2d 103 (Fla. 3d DCA 1999). The plaintiffs in Petito constituted a statewide class of persons who had used the much publicized combination of weight loss drugs Fenfluramine and Phentermine ("Fen-Phen"). While claiming no physical injury or current manifestation of disease, plaintiffs contended that their ingestion of the product placed them at a substantially increased risk of developing serious cardiovascular and circulatory ailments in the future, and sought an injunction requiring the defendant manufacturers and sellers of the product to fund a court-supervised medical monitoring program providing for medical testing, monitoring, and study of plaintiffs and others similarly situated for conditions caused by their use of Fen-Phen.(8)

Defendants contended that Florida law did not recognize pre-injury claim for future expense of medical diagnostic testing, and obtained judgment on the pleadings upon that basis. The Third District reversed, finding nothing in Florida law barring such a claim. It first observed that the Restatement (Second) of Torts' definition of "injury"--"the invasion of any legally protected interest of another"--might logically subsume an interest in avoiding expensive diagnostic testing as well as it might an avoidance of physical injury, citing with approval to Friends for All Children v. Lockheed Aircraft Corp., 746 F.2d 816 (D. C. Cir. 1984).

Given this expansive interpretation of the traditional tort "damage" element, the Third District concluded that it was entirely proper for a court of equity to create and supervise a fund for the purpose of monitoring the condition of plaintiffs when it has been shown that such monitoring is reasonably necessary. To hold otherwise, and instead force the plaintiffs to wait until after the expense of monitoring has been incurred before a cognizable claim is recognized, it reasoned, "would foreclose countless economically disadvantaged individuals from obtaining the supervision that they need, and, regardless of financial need, simply force the victims, rather than the wrongdoers, to initially bear these great expenses." It accordingly reversed and remanded the matter to the trial court for evidentiary hearing and determination of the issue of whether creation of a medical monitoring fund is appropriate under the facts of the case.

In reaching this result, the court distinguished its holding from its prior decision in Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517 (Fla. 3d DCA 1985), where it held that an individual exposed to asbestos could not recover damages for the consequent enhanced risk of contracting cancer in the future. An enhanced risk claim, it reasoned, seeks compensation for the anticipated harm itself, proportionately reduced to reflect the chance that it will not occur, and is "inherently speculative because courts are forced to anticipate the probability of future injury." A medical monitoring claim, in contrast, seeks to recover only the quantifiable costs of periodic future medical examinations necessary to detect the onset of physical harm, and presents a discrete "less conjectural" jury question on the issue of whether the plaintiff needs medical surveillance.(9) Id., quoting Redland Soccer Club, Inc. v. Dept. of the Army, 548 Pa. 178, 696 A.2d 137 (1997), and In re Paoli R.R. Yard PCB Litigation, 916 F. 2d 829, 850-851 (3d Cir. 1990).

Thus, finding no inconsistency with existing precedent, the Third District ultimately found cognizance of the medical monitoring claim "necessary to do justice," finding support for its decision in equity, common sense, and the decisions of a number of other jurisdictions.(10)

In weighing the competing public policy considerations, the court acknowledged the vitality of the concern that recognition of a full blown cause of action for medical monitoring may trigger a flood of litigation resulting in awards of lump sum damages that would deplete funds needed to compensate those who actually suffer physical injury.(11) However, it determined that limitations upon the remedy were available to redress this concern, and that within these limitations, public policy would better be served by cognizance of the medical monitoring claim: Rather than increase the societal costs of disease, it theorized that implementation and supervision of a medical monitoring fund would have the beneficial effect of encouraging early detection of disease, and in this manner might well lessen the physical damages suffered by the victim and concomitantly minimize the ultimate exposure of defendant.

In addition to the cost efficiency factor, other public policy goals furthered by recognition of this claim include the related public health interest in fostering access to medical testing for individuals at high risk, society's interest in deterring polluters and society's interest in avoiding inequitable allocation of resources for reasonably necessary medical intervention, i.e., avoiding the inequitable solution that persons wrongfully exposed to dangerous toxic chemicals or substances would be forced to pay their own future medical diagnostic expenses when this cost is more equitably shifted to the tortfeasor responsible for creating the risk.(12) In serving the ends of deterrence and equity--the twin goals of the conventional tort system--the medical monitoring cause of action thus logically finds its place within existing tort paradigm.

This article examines the placement of the medical monitoring cause of action within the Florida tort system, first discussing the standard established in Petito defining the elements of such a claim and contrasting it with developing law in other jurisdictions, and next addressing various practice concerns attendant to its application. Second, this article explores potential broader applications of this emerging concept to other tort disciplines beyond the toxic tort environment of its origin.

Defining the "Medical Monitoring" Cause of Action: The Petito Standard

Petito held that a trial court may use its equitable powers to create and supervise a fund for medical monitoring purposes where plaintiff proves the following elements:

* Exposure greater than normal background levels to a proven hazardous substance;

* Defendants' negligence in causing the exposure;

* Plaintiff's significantly increased risk of contracting a serious latent disease as a proximate result of the exposure;

* Existence of a prescribed monitoring procedure that makes the early detection of the disease possible, and which is different than that normally recommended in the absence of the exposure;

* Reasonableness and necessity of the prescribed monitoring regime according to contemporary scientific principles.

Procedures for Implementation of Remedy

Once this threshold showing is made, discovery closes and the trial court may take or cause to be taken the following steps:

1) Appointment of a plan administrator;

2) Approval of an advisory panel of persons qualified and knowledgeable in the field having responsibility to:

  1. Establish a plan where the only participants consist of persons who consumed the medication, or in appropriate cases, were exposed to the hazardous substance;

  2. Establish the minimal area(s) of diagnostic tests or procedures to be performed;

  3. Select a list of highly knowledgeable, skilled, competent, and neutral and detached examining physicians to perform the tests, both for the metro and regional areas throughout the state;

  4. Establish a notification process sufficient to bring the opportunity for monitoring to the attention of persons who have used the medication or were exposed to the substance;

  5. Establish a time frame for those eligible to obtain the monitoring.

3) Implementation of procedures for the monitoring physicians to submit their reports and findings together with statement of their charges to...

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