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NY's highest court rejects medical monitoring claim

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Post written by Mark Behrens, partner at Shook, Hardy & Bacon L.L.P. and co-chair of SHB's Public Policy Group

The New York Court of Appeals, the state's highest court, today rejected an equitable medical monitoring claim brought by longtime heavy smokers who have not been diagnosed with a smoking-related disease. The court said that medical monitoring is only available after a physical injury has been proven. The court explained that the "requirement that a plaintiff sustain physical harm before being able to recover in tort is a fundamental principle of our state's tort system" and that this physical injury requirement is important because "it defines the class of persons who actually possess a cause of action, provides a basis for the fact-finder to determine whether a litigant actually possesses a claim, and protects court dockets from being clogged with frivolous and unfounded claims."

The court also stated it "undoubtedly has the authority to recognize a new tort cause of action, but this authority must be exercised responsibly...." Echoing arguments previously articulated by SHB - and citing a Missouri Law Review article by Victor Schwartz and Leah Lorber - the court summarized some of the policy problems that could occur from creating a new, full-blown tort cause of action. For instance, the court acknowledged that countless plaintiffs could come forward to recover monitoring costs, "effectively flooding the courts while concomitantly depleting the tortfeasor's resources for those who have actually sustained damage." "Moreover," the court added, "it is speculative at best, whether asymptomatic plaintiffs will ever contract a disease; allowing them to recover medical monitoring costs without first establishing physical injury would lead to the inequitable diversion of money away from those who have actually sustained an injury as a result of the exposure." The court also noted that, from a practical standpoint, "it cannot be overlooked that there is no framework concerning how such a medical monitoring program would be implemented and administered." Again citing the article by Victor & Leah, the court concluded, "The Legislation is plainly in the better position to study the impact and consequences of creating such a cause of action, including the costs of implementation and the burden on the courts in adjudicating such claims."

1 Comment

Massachusetts recognized medical monitoring in "toxic tort" cases in the 2009 decision in Donovan v. Philip Morris.

http://www.wlf.org/publishing/publication_detail.asp?id=2137

In that state, there is a seven step test.

The opinion uses sweeping language to advance the proposition that traditional tort law doctrines need to
be liberalized to address potential latent injuries arising from exposure to toxic substances:

“Our tort law developed in the late Nineteenth and early Twentieth centuries, when the vast majority of tortious injuries were caused by blunt trauma and mechanical forces. We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent.”

On the other hand, the Court specified a list of seven elements that plaintiffs must establish to prevail on a
medical monitoring claim:

"(1) The defendant's negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint.”

http://www.martindale.com/members/Article_Atachment.aspx?od=108106&id=824638&filename=asr-824600.Massachusetts.pdf

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Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.