Medical Monitoring - Should Tort Law Say Yes?

37 Pages Posted: 22 Feb 2000

See all articles by Victor E. Schwartz

Victor E. Schwartz

Crowell & Moring LLP

Mark A. Behrens

Crowell & Moring LLP

Emma K. Burton

Crowell & Moring LLP

Jennifer L. Groninger

Texas Eastern District Court

Abstract

This article discusses the leading cases that have addressed medical monitoring claims. It addresses the reasons why legislatures are better equipped than courts to respond to the serious difficulties that medical monitoring cases present, and suggests that medical monitoring is a remedy best left to legislatures to review and resolve.

For over 200 years, a fundamental principle of tort law has been that a plaintiff has no recovery without proof of a physical injury. This bright-line "physical injury" rule has been the best filter the courts have developed to prevent a flood of claims, provide faster access to courts, and ensure that defendants are held liable only for genuine harm. Medical monitoring cases challenge this rule. Plaintiffs in these cases have no present physical injury. Instead, they seek recovery for the future cost of periodic medical examinations to detect the possible onset of disease.

Medical monitoring claims implicate a number of practical and public policy concerns. For example, they can allow for unfettered recoveries, lead to an avalanche of claims, and create substantial administrative problems. While many of the courts that have allowed these claims were cognizant of some of these issues and tried to limit the cause of action, the decision of whether medical monitoring claims should be allowed is better left to the legislature. Legislatures are better equipped to reach fully informed public policy decisions about the need for widespread changes in the law. They are in the best position to consider whether a medical monitoring remedy is needed, and, if so, how to resolve its inherent complexities. Tackling the challenges inherent in allowing awards for medical monitoring is a role for the legislatures, rather than the courts.

JEL Classification: K13

Suggested Citation

Schwartz, Victor E. and Behrens, Mark A. and Burton, Emma K. and Groninger, Jennifer L., Medical Monitoring - Should Tort Law Say Yes?. Available at SSRN: https://ssrn.com/abstract=207088 or http://dx.doi.org/10.2139/ssrn.207088

Victor E. Schwartz (Contact Author)

Crowell & Moring LLP ( email )

1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2595
United States
(202) 624-2540 (Phone)
(202) 628-5116 (Fax)

Mark A. Behrens

Crowell & Moring LLP ( email )

1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2595
United States
202-624-2675 (Phone)
202-628-5116 (Fax)

Emma K. Burton

Crowell & Moring LLP ( email )

1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2595
United States
202-624-2761 (Phone)
202-628-5116 (Fax)

Jennifer L. Groninger

Texas Eastern District Court

TX

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