Medical Monitoring Without Physical Injury: The Least Justice Can Do for Those Industry Has Terrorized with Poisonous Products

Abstract

This article argues for expanded awards of medical monitoring relief in cases in which people exposed to dangerous industrial toxins have not incurred any physical injury. Free standing awards of monitoring costs demonstrably proven to be medically necessary or efficacious is justified, despite the fact that many of those given the awards may never actually incur physical harm, because the wrongdoing defendant has put the victim to Hobson's choice between risking death or serious injury or incurring medical expenses to head them off. The article argues that such relief should be awarded through equitable remedies that might, over time, modify or even eliminate the need for monitoring should the efficacy of such relief change with new information. Such awards in effect would tend actually to mitigate more serious damages by heading them off, while at the same time addressing, in a focused and responsible way, not only the risk that wrongdoers may have put victims to but also the emotional stresses associated with knowing that you are subject to substantial risk but being without the resources to prevent such risk from becoming fully realized.

Keywords: Medical monitoring, Inchoate torts, Medical expense awards without Physical Injury, Physical Harm Rule

JEL Classification: I18, K13, K32