Medical Monitoring

by Leona Egeland Siadek, Vice President, Government Relations

Imagine suing your city because you fear getting into an accident at a particularly notorious intersection. Or you could file a claim against the water district because you drank the water that now tests higher than normal for mercury. You have not had a fender bender. You are not sick. But you fear an accident or illness, and you believe you should sue someone so you can be paid for your worry. In many states, claims have been filed by people who were exposed to a dangerous substance but to date have not experienced an injury.

A claim for medical monitoring asks the defendant to pay money to monitor the health of the plaintiff. Most medical monitoring cases have been brought as class actions. Early class actions involved exposure to PCBs, asbestos, lead paint, dioxin, beryllium, and other toxic materials. Often claims of medical monitoring and claims of mental anguish are filed together.

The personal injury bar promulgates the argument that a plaintiff’s fear of developing an injury constitutes an injury itself. They also make the point that if they wait until the plaintiff suffers the injury after exposure, the statute of limitations or the statute of repose will disallow a claim. Attorneys on the defense side argue that the theory of medical monitoring would hold a defendant responsible for an injury that has not and may never develop. It is impossible to determine the likelihood that a future injury or disease will occur. There has also been no requirement that the plaintiff actually spend money obtained on medical monitoring. Some plaintiffs’ attorneys are concerned that when a class is certified for medical monitoring, the plaintiff’s right to subsequent action for real injury is basically taken away.

What is the state of the law on this issue? Until recently, tort law required a plaintiff to show present injury as a prerequisite for recovery. Some state supreme courts have ruled that plaintiffs may not bring a claim of medical monitoring and that an actual, present injury must exist to recover damages. Michigan, Louisiana, Texas, Nevada, Kentucky, and Alabama have rejected medical monitoring; West Virginia and Mississippi specifically allow such claims. New York plaintiffs filed a class action in federal court in January 2006 over the issue of medical monitoring for healthy smokers. In February 2006, the Third District Court of Appeal reversed a Florida trial court’s decision to grant certification for a class of asymptomatic women who took a hormone replacement therapy drug.

The American Tort Reform Association believes that state legislatures, not state courts, should decide whether to adopt medical monitoring as a theory of recovery because a decision of this kind exceeds the judiciary’s authority to interpret the law.

More state legislatures and more courts will be grappling with this issue in future years with a potentially significant impact on medical liability. Does this mean, for example, that more oncologists will be sued in medical monitoring claims by patients who have been exposed to toxic substances? Will a physician’s lack of medical monitoring constitute failure to diagnose?

With billions of pounds of hazardous chemicals emitted into the air each year and at least 20 percent of the U.S. population exposed to hazardous waste sites noted by the EPA, medical monitoring will most likely become the target of legislation in many states.

Federal Issues

The U.S. Senate failed twice on May 8 in its attempt to pass effective medical liability reform. S. 22 (Ensign of Nevada) drew many of its essential provisions from California and Texas statutes. A proposed cap on noneco-nomic damages was $250,000 for physicians, an additional $250,000 for a hospital, and an additional $250,000 if a second health care institution was involved. The total liability allowed would have been $750,000. S. 23 (Santorum of Pennsylvania) set forth the reforms of S. 22 for OB-GYNs. Both bills may be taken up once again before the scheduled September 30 adjournment date.

S. 1337 (Enzi of Wyoming) is known as the Fair and Reliable Medical Justice Act. It proposes providing federal grants to 10 states to establish one of three alternative reform models: early disclosure and compensation; administrative determination and compensation; or special medical courts. A public hearing was held on June 22, but no action was taken.

S. 2509 (Sununu of New Hampshire) would create a set of uniform federal regulations for insurers rather than subjecting them to multi-state regulations. H.R. 5637 (Brown-Waite of Florida) addresses issues about the federal regulation of reinsurance coverage. No action on either bill is likely this year.

H.R. 420 (Smith of Texas) passed the House last October, but the Senate Judiciary Committee has yet to take up the measure. This bill proposes sanctions on attorneys for filing frivolous claims.

Recent State Actions

Arizona
Governor Napolitano (D) vetoed H.B. 2315, a bill that would have raised the legal burden of proof necessary for a plaintiff to win a lawsuit against emergency room personnel from preponderance of evidence to clear and convincing evidence.

Florida
Governor Bush (R) signed H.B. 7529, which establishes venue reform to prohibit out-of-state residents from filing lawsuits in Florida courts. The measure also requires claimants to prove actual damages in order to maintain certain types of class actions.

Georgia
Governor Sonny Perdue (R) signed H.B. 239, which provides that a party declining a settlement offer is potentially liable for attorneys’ fees and court costs depending upon which side wins and which side rejects
the settlement.

Illinois
S.B. 1911, sponsored by the plaintiffs’ lawyers, is a col-
lateral source reform bill. It proposes that the plaintiff recover damages for the amount billed rather than the amount actually paid to the health care providers. The bill also prohibits a defendant from presenting evidence of benefit payments made to defend a claim. The assembly adjourned without taking action on the bill, but it may be brought up again in November.

Iowa
Governor Vilsack (D) signed H.F. 2716. The bill makes expressions of sympathy and apology inadmissible as evidence in any injury.

Missouri
Governor Blunt (R) signed H.B. 1837, giving new authority to the Department of Insurance to act if premiums are found to be inadequate or discriminatory.

Rhode Island
H. 7109 passed both houses in mid-June, and Governor Carcieri (R) allowed the bill to become law without his signature in early July. This bill makes the state’s joint and several liability law one of the most unfair in the country. It amends various sections of state statute to reduce a non-settling party’s liability only by the amount of consideration paid for a release by a settling tortfeasor. The new law eliminates the present ability of non-settling tortfeasors to reduce liability by any other amount, or proportion, if that amount is greater than the amount settled.

South Carolina
Governor Mark Sanford (R) signed S. 1038, which establishes medical criteria for the filing of asbestos and silica claims. The minimum medical criteria used were based upon AMA guidelines for the evaluation of permanent impairment.

Tennessee
Governor Phil Bredesen (D) signed S.B. 3539, which establishes minimum medical criteria for the filing of silica cases.

Wisconsin
Governor Doyle (D) vetoed A.B. 1072, a bill to make compensation provided by sources other than the defendant admissible in medical liability cases.