Court Recognizes Medical Monitoring Claims

The comforting belief that regular screening for illnesses is unquestionably beneficial came under attack in 2009. First the health care reform dialog introduced the idea that in the face of ever-advancing technology, the risks of frequent medical screening--false positives, unnecessary treatment, wasteful spending, patient anxiety--sometimes outweigh the benefits.

Then in October, a New York Times story made waves by quoting Dr. Otis Brawley, chief medical officer of the American Cancer Society. "We don't want people to panic," Brawley told the newspaper. "But I'm admitting that American medicine has overpromised when it comes to screening."

"Plaintiffs in medical monitoring cases have gone in three different directions in recognizing that they don't have traditional physical injury--that I have subclinical harm that can be demonstrated, that I'm at increased risk of a future disease and that's my injury, or that I need medical monitoring because it's the standard of care," Wajert says. "In many jurisdictions they choose one argument, but in Massachusetts the plaintiffs argued all three and the court said you have to have all three."

Now in Massachusetts if a plaintiff can show the elements above, the plaintiff can bring a claim for medical monitoring.

Associate Editor

Melissa Maleske

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