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

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

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...