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January 10, 2006

Increased Risk & Medical Monitoring Claims

Medical monitoring claims got their start in Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984),|Lexis| a case in which children who had survived a plane crash sought and recovered the costs of diagnostic examinations to determine if they suffered from "minimal brain disfunction." A number of states soon followed the D.C. Circuit's lead and recognized medical monitoring claims in a variety of cases in which the plaintiffs were suffering no present injuries but were at increased risk of injury in the future due to the defendant's negligence. 

In 1997, the issue was considered by the U.S. Supreme Court which rejected a medical monitoring claim brought by employees against an employer under the Federal Employers' Liability Act (FELA) 45 U.S.C 51 et seqIn Metro-North Commuter R.R. v. Buckley, 521 U.S. 424 (1997) |Lexis||LII|, the court concluded that recognition of such claims under FELA was not an appropriate way to resolve the competing considerations raised by the medical monitoring debate.  There has also developed a small counter-trend among state courts, four of which have now rejected claims for medical monitoring costs in enhanced/increased risk cases. 

Michigan has recently joined the supreme courts of Alabama, Kentucky and Nevada by rejecting medical monitoring claims in cases where the plaintiff does not allege a present physical injury.  In Henry v. Dow Chemical Co., 473 Mich. 63; 701 N.W.2d 684 (2005) |Lexis||PDF|, the Michigan Supreme Court concluded that, in the absence of a present injury, there is no viable negligence claim under Michigan common law.  "Mere exposure to a toxic substance and the increased risk of physical injury do not constitute an 'injury' for tort purposes." 


January 10, 2006 | Permalink


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