The Newest Victim Class: The Uninjured

The Madison County Record Dec. 6, 2009, 2:31am

"Use of your product hasn't harmed me in any way. But there's a remote chance that I might develop some ailment in the future that could conceivably be attributed to that usage; so, what I want you to do is pay for doctors to watch me until I die or contract some disease for which I can sue you."

What kind of idiotic proposal is that, you might ask.

Believe it or not, in some states executives and entrepreneurs have encountered such a legal land mine. Companies in those jurisdictions are required by law to fund some fishing expeditions of plaintiffs' attorneys, and pay for the so called "medical monitoring" of uninjured customers who "might" someday suffer harm.

Medical monitoring in Illinois was the subject of a paper published last month in the DePaul University Journal on Health Care Law. It's authors, a quartet of lawyers from the Chicago law firm Mayer Brown LLP, calls upon the Illinois Supreme Court to proactively take on the issue, setting a precedent that tells our state's employers they have little to fear.

In other states-- Missouri, West Virginia, New Jersey, Pennsylvania, and Utah-- businesses certainly have much to fear. That's even though the whole concept seems so inane and unsupportable.

First, a businessman--like everyone else--is presumed innocent until proven guilty. Therefore, how can he be held liable in any way for an injury that hasn't happened?

Second, a businessman--like everyone else--is protected against self-incrimination, so how can he be obliged to finance a process that might someday produce evidence against him?

Fortunately, our State Supreme Court has thus far rejected tort claims seeking "medical monitoring" of healthy, uninjured "victims."

Nevertheless, some local plaintiffs' attorneys are eager to import this absurd practice to Illinois, thereby extending the pool of potential clients from the injured to the uninjured.

We don't need personal injury lawyers becoming personal uninjury lawyers, further clogging our overloaded court system with baseless suits and making Illinois a less friendly environment for business than it already is.

As the paper points out, the bulk of the judgments in such cases would go to the attorneys with little left for the clients--adding insult to uninjury.

If they're going to monitor potential plaintiffs, our courts should offer the same supervision to a certain gaggle of plaintiffs' attorneys. One never knows when their antics will result in future harm!

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