“Medical monitoring is one of a growing number of nontraditional torts that have developed in the common law to compensate plaintiffs who have been exposed to various toxic substances toxic substances.” In re: Paoli R.R. Yard PCB Litigation, 916 F.2d 829, 849 (3rd Cir. 1990).
Medical monitoring is a cause of action that plaintiffs can choose to assert in lawsuits, particularly in medical mass torts and class actions. The claim is most often asserted in toxic exposure claims, usually where the plaintiff has been exposed to a substance with allegedly harmful, but latent, symptoms. Medical monitoring seeks to recover “the economic costs of the extra medical check-ups that [the plaintiff] expects to incur as a result of his exposure” to a product. Metro-North Commuter Ry. Co. v. Buckley, 521 U.S. 424, 438 (1997).
The most significant characteristic of a medical monitoring claim is that it allows a plaintiff to recover a potentially large damage award without proof of a present injury.
To establish entitlement to medical monitoring damages, a plaintiff must generally prove that:
- plaintiff was significantly exposed to a proven hazardous substance through the negligent actions of the defendant;
- as a proximate result of the exposure, plaintiff suffers a significantly increased risk of contracting a serious latent disease.
- that increased risk makes periodic diagnostic medical examinations reasonably necessary; and
- monitoring and testing procedures exist which make early detection and treatment of the disease possible and beneficial. In re Paoli, 916 F.2d 829, 852 (3rd Cir. 1990).
In a successful action, damages are paid into a fund that allows the plaintiff to take payments from the fund as medical expenses are incurred.
Medical monitoring programs derived from prophylactic monitoring due to workplace exposure to potentially harmful substances. The U.S. Preventative Services Task Force developed a rigorous methodology in the Guide to Clinical Preventive Services in 1996. The program lays out ways to assesses whether evidence is sufficient in any given context to warrant monitoring. It also determines whether the benefit of testing outweighs any potential harm to the patient.
How Does Medical Monitoring Work for the Plaintiff?
Monitoring is a form of surveillance consisting of repeated testing intended to detect a specified change in a patient indicating a change in his prognosis, need for treatment or need for a change in treatment. The concept of monitoring overlaps with those of screening and diagnosis. One may monitor a physiologic or pathologic process, a therapeutic or noxious agent, comparing results with the patient’s previous results or with a group reference range. Pertinent questions include:
- what are the indications?
- what is to be monitored?
- which tests are to be used?
- when to start?
- how frequently to test?
- when to stop?
Patients can be monitored for residual effects of a current physical injury or residual effects of exposure to chemicals, pharmaceuticals, or radiation. Medical monitoring is distinguished from routine prophylactic care such as annual exams, blood tests, mammograms, and prostate exams. Medical monitoring is also not the same as “increased risk of disease” and is treated differently by the courts. Claims for increased risk seek recovery for the increased risk of contracting a disease. Courts tend to focus on the probability of contracting the disease. Claims for medical monitoring seek recovery of testing expenses. Increase risk and medical monitoring are interrelated, however, because to qualify for medical monitoring damages a claimant must prove increased risk.
Monitoring Damages Vary Across the Country
Nine states recognize medical monitoring damages without requiring a showing of present physical injury. They are:
- Arizona
- California
- Florida
- Missouri
- New Jersey
- Ohio
- Pennsylvania
- Utah
- West Virginia
Fourteen states do not recognize medical monitoring claims where no present physical injury is known. They are:
- Alabama
- Connecticut
- Kentucky
- Louisiana
- Michigan
- Minnesota
- Mississippi
- Nevada
- North Carolina
- Oklahoma
- Oregon
- Rhode Island
- Tennessee
- Virginia
Federal courts in seven states have predicted that state law would not recognize medical monitoring claims absent present physical injury. Twelve states have no addressed whether no-injury medical monitoring claims would be recognized, and three states have issued conflicting opinions (Delaware, Indiana, New York).
Medical Monitoring Is a Public Health Issue
Courts have ruled that it is “inequitable” for a claimant to have to pay for his or her own medical intervention where the intervention was reasonable and necessary and “unquestionably” caused by the defendant’s tortious conduct. In addition, there is a significant public health interest in fostering access to medical testing to individuals who exposure to toxic chemicals creates an enhanced risk of disease. Permitting recovery for reasonable, pre-symptom medical surveillance expenses serve as a real deterrent to defendants emitting toxic chemicals.
Notable Mass Tort Medical Monitoring Awards
Litigation over the diet drug Fen-Phen provides a prime example of how medical monitoring is used in mass tort litigation. Fen-Phen manufacturer American Home Products Corp. reached a settlement with a plaintiff class of more than 200,000 users of the drug for $3.75 billion, approximately $1 billion of which was to be placed in a medical monitoring fund.
In 2010, DuPont settled a medical monitoring class action for $70 million, plus cost of 30 year monitoring program. In Perrine v. DuPont, 04-C-295-2, Circuit Court, Harrison County, West Virginia.The original jury verdict was $251.7 million.
Lump Sum Versus Court Supervision
Most courts that permit medical monitoring claims reject lump sum awards. Lump sum awards are sometimes not used by plaintiffs for their intended purpose. Plaintiffs lawyers working on contingency have incentive to overstate cost and need for medical monitoring • Al i f s a result, courts are more receptive to requests for court supervised programs: • “In this case, q the Plaintiffs have not re quested a court supervised medical monitoring fund or program.” Mehl, et al. v. Canadian Pacific Railway, Limited, et al., 227 F.R.D. 505, 519 (N.D. 2005)
Medical monitoring class actions pose certain potential advantages for plaintiffs, but most compelling is the potential for recovering substantial amounts of money for an entire class of prescription drug users or medical device patients who currently have no apparent injury. In the modern world of medical treatment, the numbers get very big, very fast, which obviously makes medical monitoring class actions attractive to attorneys seeking court-awarded fees.
Written by Jerise Henson
About the Author
Jerise Henson is the Academy Content Writer at The Mass Tort Institute. She has served in numerous roles in mass tort firms from case manager to paralegal and director of client services. She is passionate and dedicated to improving education and training for allied professionals in the mass tort industry.
The Mass Tort Institute is a consortium of industry leaders dedicated to providing education, training, and networking opportunities for those advocating on behalf of mass tort victims.
