Tuesday, October 20, 2009

Massachusetts Sort Of Recognizes Medical Monitoring

Thanks to a newspaper reporter of all people for this tip - John Ellement of the Boston Globe. The case involved, Donovan v. Philip Morris (go here and click on, first, "slip opinions" and then "Supreme Judicial Court" and finally "opinions"), is a cigarette case, and since both of our firms represent tobacco companies we're limited in what we can say. So we'll concentrate on the elements of the "medical monitoring" cause of action that the court recognized. These are:
(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.

Donovan, SJC-10409, at ??? (there's no pagination - look for footnote eleven).

Element 3 is why we say that Donovan only "sort of" recognized medical monitoring. The court required "at least" what it calls "subcellular changes" as a form of present physical injury. At least linguistically, that's different than a lot of medical monitoring formulations, which don't require any physical injury at all. Indeed the Donovan court "leave[s] for another day consideration of cases that involve exposure [where] . . . no symptoms or subclinical changes have occurred." Whether this element actually requires anything more than a formulaic pleading of "subcellular changes" remains to be seen, but at least for now it's a different approach to medical monitoring than we've seen in most other states that (we believe wrong-headedly) have allowed such claims.

Otherwise: Element 1 makes clear that medical monitoring in Massachusetts is a negligence cause of action, and not any sort of strict liability. Element 4 means that there actually has to be a form of effective medical monitoring. Element 5 tells us that there must be some sort of cure or treatment that will improve the condition. Element 6 states that the monitoring must actually be necessary to a particular plaintiff's treatment, in which (we think) also lurks the requirement that the monitoring be something more than what every person should do regardless of any exposure.

Anyway, for a state with as liberal a reputation as Massachusetts, as medical monitoring claims go, this one is at least somewhat limited. That's not to say that we like it - but that it could have been worse. And, as we've discussed elsewhere, the existence of a medical monitoring cause of action hardly mean that this sort of relief can be obtained through class actions.

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