American Law Institute Vote On Medical Monitoring Could Spur Increased "No-Injury" Claims

• Jurisdiction: United States,Federal
• Law Firm: K&L Gates
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Author: David Fusco, Jackie Celender, Wesley Prichard and Michael G. Pence
• Published date: 18 May 2023

The American Law Institute is scheduled to vote shortly on a new proposed rule for its Restatement (Third) of Torts that would recognize a claim for medical monitoring, even in the absence of physical injury. Companies in all industries should be aware of the proposed rule and consider how it may affect their profile in tort litigation.

If ratified, the rule would see the Restatement, which courts nationwide cite regularly, embrace a minority view of no-injury medical-monitoring claims that could significantly increase the number of such claims filed. As we recently discussed, unsuspecting defendants have seen an uptick in claims based on low-level alleged exposures to various chemicals.¹There has also been an increase in medical-monitoring claims seeking payment for diagnostic procedures to screen for an alleged increased risk of future harm, even though no injury has manifested (and no injury may ever manifest).

While most states do not recognize independent medical-monitoring causes of action-as compared to medical-monitoring costs as a form of damages from another tort claim, which can be recoverable-the proposed rule to the Restatement could change that landscape significantly going forward. The text of the proposed rule to the Restatement is as follows:

' __. Medical monitoring

An actor is subject to liability for the expenses of medical monitoring, even absent manifestation of present bodily harm, if all of the following requirements are satisfied:

1. the actor has exposed a person or persons to a significantly increased risk of serious future bodily harm;
2. the actor, in exposing the person or persons to a significantly increased risk of serious future bodily harm, has acted tortiously the tortious conduct is a factual cause of the person's need for medical-monitoring, and the monitoring is within the actor's scope of liability;
3. a monitoring regime exists that makes expedited detection and treatment of the future bodily harm both possible and beneficial;
4. the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and
5. the prescribed monitoring regime is reasonably necessary according to generally accepted contemporary medical practices, to prevent or mitigate the future bodily harm.

The proposed rule raises several issues.

First, the rule is not a "restatement" of the law in the majority of jurisdictions. Courts in 28 states have rejected no-injury medical-monitoring claims,²as has the USSupreme Court...