Chilling New Ways Patients Are Suing Doctors

Anthony Francis, MD, JD

Disclosures

March 29, 2012

In This Article

Regaining Popularity: Suing for Potential Future Problems

Suing for future potential problems has been around for about 20 years but is gaining in popularity now. It arose from various class action suits involving exposure to toxic substances. The gist of the action is that a plaintiff may develop pathology in the future because of toxic exposure.

Traditional tort law requires establishing damages by the time the case is tried. So this new tort seeks damages for conditions that have not been identified at the time of the trial but may emerge in the future. It seeks monetary damages to "monitor" the plaintiff in the future. This represents a new wrinkle in individual cases.

In a 1997 case, the United States Supreme Court rejected "medical monitoring" as a legitimate claim. This decision effectively decreased the number of medical monitoring cases filed at the state level. However, in 2006 in Massachusetts, Kathleen Donovan sued Philip Morris USA on behalf of former heavy smokers. They didn't seek monetary damages but wanted the court to grant a program of low-dose CT scanning to screen for future lung cancer. In 2009, the Supreme Judicial Court of Massachusetts reversed the antiscreening trend and handed down an opinion allowing claims for medical monitoring to go forward.

Normally, the case would have been dismissed because the plaintiffs could not prove current injury. This represents an expansion of tort law that could easily be used to define a new standard of care: failure to monitor.

'However, not all states are going in that direction. In a 2007 North Carolina case, Curl v. American Multimedia, the allegation of "future likelihood of disease" was rejected. The plaintiffs claimed that the defendants were liable for contamination of their wells.

On the basis of these claims, the plaintiffs sought damages for medical expenses, pain and suffering, the increased likelihood of future disease, and the cost of medical monitoring. The North Carolina court was reluctant to create a new cause of action.

Plaintiff attorneys have sued for medical monitoring costs involving all types of products and activities, including potential hazards from cigarettes, operation of landfills, radiation, PCBs, pharmaceuticals, electric and magnetic field radiation, radiofrequency energy emissions, asbestos, and implanted medical devices. These claims have generally been barred.

Regardless, the 2009 ruling in Massachusetts has set a new precedent. Several states, such as Ohio and West Virginia, have recently accepted failure to monitor as a tort. A pending case in New York State is expected to arrive at a similar conclusion.

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