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Uphill Battle for Medical Monitoring Claims

Posted On July 22nd, 2010 By CSSFIRM.COM

Medical monitoring is a controversial subject in the field of toxic substance exposure litigation because it flies in the face of the basic tenets of tort law. Tort law – the litigation of civil wrongdoings and negligence – is based on the principle that the Plaintiff has a recognizable form of legal harm that can be legally remedied. In toxic substance litigation, the harm, when provable, is often a physical one, and the remedy is usually in the form of “damages,” i.e. a monetary award.

Medical monitoring is a remedy sought based on the possibility that one who appears healthy now many develop signs of physical harm at some point in the future. Specifically, a plaintiff seeks damages for ongoing diagnostic testing and screening procedures in anticipation of developing symptoms for the potential damage caused by exposure to a toxic substance. Medical monitoring has been attacked by critics based on several alternate theories.

Courtroom Remedies versus Legislation

Historically, federal and state lawmakers have regulated the creation, distribution and emission of toxic substances. Tort law exists to provide a remedy for those who have been personally harmed by toxic substances, and has had some influence on the enactment of protective laws. Medical monitoring, however, runs the risk of making boundary between judicial relief and legislation less clear. Only legislative action can ensure individuals are protected, regardless of whether harm can be proved in a courtroom or now.

Medical Monitoring Rare in Class Action Lawsuits

Toxic substance exposure cases are generally brought before the court as “class action lawsuits” – lawsuits where a group of Plaintiffs with similar cases are presented as a single case, meriting a legal remedy that applies to all uniformly. Class action suits are beneficial to both parties to an action, as well as to the court system as a whole, because they save time and money on what would otherwise be protracted litigation. Many judges have refused to certify medical monitoring as a remedy for an entire class because each Plaintiff’s symptoms and exposure are too widely varied.

Early Diagnosis is Not a Cure

In recent years, controversy has arisen over the efficacy of early medical diagnosis. Defense attorneys argue that juries are prejudiced by a perceived link between early diagnosis and the ability to cure for a disease or condition. Some attorneys argue that despite increases in diagnostic screening in recent years, most maladies are not being cured at any greater a rate than before the availability of early screening. Much of this controversy comes from the link between early detection and successful outcomes for cancer patients. In addition, many types of toxic exposures are likely to cause cancers. For these reasons, the early diagnosis argument carries little merit.

If you or someone you love has been exposed to a toxic substance and suffered serious injuries as a result, contact our office for a free consultation and evaluation of your case. We will help you determine if you have a claim for damages or medical monitoring.

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