Paper explores medical monitoring in Illinois

John O'Brien Dec. 1, 2009, 4:15am


CHICAGO - Allowing medical monitoring claims in Illinois would be a risky move if the state Supreme Court ever decides to, a paper recently published in the DePaul University Journal of Health Care Law says.

Because of the state's plaintiffs-friendly history in asbestos and other toxic tort cases, recognizing medical monitoring would clog the state's courts and fly in the face of public policy, wrote authors Herbert L. Zarov, Sheila Finnegan, Craig A. Woods, and Stephen J. Kane of Mayer Brown.

Supreme Courts in Missouri, New Jersey, Pennsylvania, Utah and West Virginia have all allowed medical monitoring as a form of relief. Medical monitoring is a claim that allows members of a class to have their health tests paid for by a defendant alleged to have potentially harmed them.

No injury is alleged, just the possibility of one. The Massachusetts Supreme Court also recently authorized a medical monitoring claim in a federal cigarette smokers suit.

The authors write that the Illinois Supreme Court has repeatedly rejected claims where no injury is presented.

"Illinois law requires plaintiffs to establish standing 'by demonstrating some injury to a legally cognizable interest,'" the paper says.

"But as some courts and commentators have noted, it is not at all clear that a purported need for future medical monitoring constitutes an injury to a 'legally cognizable interest.' In sum, the difficulty reconciling a medical monitoring claim with other legal rules highlights the need for caution in considering whether to depart from a longstanding rule such as the physical injury requirement."

A "dramatic" increase in the number of plaintiffs seeking medical monitoring would have a number of negative consequences, the authors argue.

Among them would be an adjustment of the statute of limitations, which begins running when a personal injury is found. If there is no injury, the statute would have to be altered.

Also, large medical monitoring awards like the one in a West Virginia case against DuPont could prevent some businesses from having the funds to pay personal injury plaintiffs if they do cause them harm.

A Kentucky decision says, "(s)pending large amounts of money to satisfy medical monitoring judgments will impair (Defendants') ability to fully compensate victims who emerge years later with actual injuries that require immediate attention."

The paper notes the reputations of some Illinois counties, such as Madison, that were termed "Judicial Hellholes" by the American Tort Reform Association. Madison County has been seen as a haven for asbestos claims because of its ability to deal with them quickly.

Cook County's Asbestos Deferred Registry that allowed those without asbestos-related injury to file their claims, pending the onset of injury, is also mentioned.

Thus, courts that have methods for getting through high numbers of toxic tort cases will become even more packed if medical monitoring is allowed, the paper says, especially considering the cases benefit plaintiffs attorneys the most.

"Given the limitless pool of potential plaintiffs and the ongoing need to supervise medical monitoring programs, the recognition of a medical monitoring claim would have an even greater effect on courts' ability to function effectively than would the market share theory or the processing of asymptomatic plaintiffs' asbestos claims," the paper says before again citing the Kentucky decision.

"Nor is there any pressing need for courts to take on the added burden of hearing medical monitoring cases—the benefits of monitoring are... illusory in many cases and 'money awarded for the purpose of health care will go in large percentage to (plaintiffs') lawyers, not the exposure victims.'

"In short, Illinois courts would be better suited to focus more attention on cases involving plaintiffs who have actually been harmed rather than diluting that focus by hearing the claims of the uninjured."

Armed with a U.S. Supreme Court decision authored by Justice Stephen Breyer, other state supreme courts that have rejected medical monitoring claims include Alabama, Michigan, Mississippi, Nevada and Oregon, the paper says

In their decisions, they determined allowing them would be contrary to public policy. The Michigan decision put the responsibility of recognizing the claim with the state Legislature.

"It explained that the decision whether to adopt a medical monitoring claim 'necessarily involves a drawing of lines reflecting considerations of public policy, and a judicial body is ill-advised to draw such lines given the limited range of interests represented by the parties and the resultant lack of the necessary range of information on which to base a resolution,'" the paper says.

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