Should Victims of Exposure to a Toxic Substance have an Independent Claim for Medical Monitoring?

• Published date: 06 April 2007
• DOI: https://doi.org/10.1016/S0193-5895(06)22007-4
• Date: 06 April 2007
• Pages: 217-231
• Author: Thomas J. Miceli,Kathleen Segerson

SHOULD VICTIMS OF EXPOSURE

TO A TOXIC SUBSTANCE HAVE AN

INDEPENDENT CLAIM FOR

MEDICAL MONITORING?

Thomas J. Miceli and Kathleen Segerson

ABSTRACT

Traditional tort law does not allow a victim of exposure to a toxic sub-

stance to seek damages without evidence of actual loss. Given the difficulty

of collecting damages after a long latency period, however, we examine

the desirability of granting exposure victims an independent cause of ac-

tion for medical monitoring at the time of exposure. We show that such a

cause of action is not necessary to induce victims to invest in efficient

monitoring. It can, however, increase incentives for injurer care, but only

at the cost of greater litigation costs. The general reluctance of courts to

adopt a cause of action reflects their recognition of this trade-off.

1. INTRODUCTION

Under the traditional law of torts, victims cannot sue for damages without

evidence of actual loss. For example, a victim of exposure to a hazardous

substance who has not developed symptoms of illness does not have a cause

Research in Law and Economics, Volume 22, 217–231

Copyright r2007 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 0193-5895/doi:10.1016/S0193-5895(06)22007-4

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