No Medical Monitoring Without Physical Harm
November 11, 2009
News and Views on Environmental & Toxic Tort Federal and State Legal Issues and Developments
November 11, 2009
BNA Toxics Law Reporter reported this morning that a Rhode Island trial court in Providence rejected a claim for medical monitoring by the mother of a child suffering from lead poisoning, in the absence of any physical manifestation of harm related to the diseases that plaintiff’s expert contends the child is now at greater risk of developing. Although the court found that the plaintiff had submitted sufficient medical evidence to permit her to sue for compensatory damages for her son’s alleged cognitive deficits due to lead exposure, she failed to prove that her son manifested a sign or symptom of the diseases for which she believed medical monitoring was warranted. In denying the claim, Judge Alice Bridget Gibney, in Miranda v. Dacruz, R.I. Super Ct., No. PC 04-2210, 10/26/09) held that, "This Court is not persuaded to open the damages flood gates to indefinite future monitoring". Judge Gibney distinguished the case before her from Donovan v. Philip Morris USA, Inc., in which the Massachusetts Supreme Judicial Court ruled last month that a medical monitoring claim by long-term smokers related to the early detection of lung cancer could proceed. In that case, Judge Gibney noted, plaintiffs exhibited sub-cellular or other physiological changes, which although not symptoms of a disease, are warning signs. I believe Donovan sets a dangerous precedent. The "damages flood gates" that concerned Judge Gibney are more likely to open if the burden of medical monitoring plaintiffs is reduced to demonstrating a sub-cellular or physiological change rather than an injury or disease. Under this loosened standard, a sun tan, a skin blemish, a sneeze or elevated cholesterol could justify permitting a medical monitoring claim to proceed.