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Exposed But No Injury? Sue Now, Nevada.

In a New Year’s eve gift, the Nevada Supreme Court ruled that plaintiffs’ lawyers can bring lawsuits seeking medical monitoring costs on behalf of people who aren’t injured. The ruling, which is contrary to the trend in state courts, will allow individuals who may never develop an illness to bring massive class actions.

A fundamental rule of tort law is that someone must experience an injury before bringing a lawsuit. In 1997, U.S. Supreme Court “canvassed the state law cases that have considered whether the negligent causation of this kind of harm (i.e., causing a plaintiff, through negligent exposure to a toxic substance, to incur medical monitoring costs) by itself constitutes a sufficient basis for a tort recovery.” It found that “with only a few exceptions, common law courts have denied recovery to those who, like Buckley, are disease and symptom free.” The high court recognized that the alternative would result in “unlimited and unpredictable liability” since “tens of millions of individuals may have suffered exposure to substances that might justify some form of substance exposure related medical monitoring.”

Many state courts follow this traditional rule. The New York Court of Appeals is the latest to do so, meriting a “Point of Light” in the 2014-15 Judicial Hellholes report.

Ironically, the Nevada Supreme Court was among the first of series of state high courts that followed the U.S. Supreme Court’s reasoning when it rejected  a medical monitoring claim in 2001. At that time, the Nevada Supreme Court recognized the compelling public policy arguments against recognizing a medical monitoring cause of action for exposure to allegedly toxic substances, namely: (1) the possibility that the tort would trigger widespread litigation with potentially crippling liability; (2) granting medical monitoring to large numbers of asymptomatic claimants, who may never become ill, would divert and possibly even deny limited resources to plaintiffs with meritorious claims of serious illness; (3) a medical monitoring award could preclude plaintiffs from filing a claim if they later develop physical injuries; and (4) medical monitoring claims involve a balancing of complex, diverse, and competing social interests that should be left to legislatures. The court left open the possibility, however, that medical monitoring costs might be available as a remedy when a plaintiff establishes an underlying cause of action.

The court walked through the door it left open 14 years earlier, allowing a class action seeking medical monitoring costs in Sadler v. PacifiCare of Nevada, Inc. This lawsuit arises out of the same  hepatitis C outbreak that plaintiffs’ lawyers have successfully used to shift blame from an unsanitary clinic (whose doctor is serving a life sentence) to drug companies and health insurers — resulting in a $270 million settlement with TEVA and a $524 million verdict against the Health Plan of Nevada.

The court allowed medical monitoring recovery in a class action lawsuit against an HMO, asserting PacifiCare was negligent in failing to perform its duty to establish and implement a quality assurance program to oversee the medical providers within its network. As a result, plaintiffs claim the clinic was able to use unsafe injection practices, such as reusing contaminated vials. The plaintiffs did not bring a tort claim for medical monitoring but, instead, asked the court to establish a court-supervised medical monitoring program at PacifiCare’s expense as relief for their negligence claims.

After considering a few early cases allowing medical monitoring, the court “recognize[d] that a plaintiff may state a cause of action for negligence with medical monitoring as the remedy without asserting that he or she has suffered a present physical injury.” Although several courts that have allowed medical monitoring claims have placed stringent requirements on plaintiffs to avoid speculative claims, the Nevada Supreme Court “decline[d] to identify specific factors that a plaintiff must demonstrate to establish entitlement to medical monitoring as a remedy.” Instead, all a plaintiff needs to show is that he or she “is reasonably required to undergo medical monitoring beyond what would have been recommended had the plaintiff not been exposed to the negligent act of the defendant.”


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